Does Obama's War on Libya Violate the Constitution?

At the Originalism Blog, University of San Diego legal scholar Michael Ramsey explains why President Barack Obama's decision to intervene in Libya without congressional approval violates "both the Constitution's text and the founding era's consensus understanding." Here's a brief excerpt from Ramsey's long and carefully argued post:

Every major figure from the founding era who commented on the matter said that the Constitution gave Congress the exclusive power to commit the nation to hostilities.  Notably, this included not only people with reservations about presidential power, such as James Madison and Thomas Jefferson, but also strong advocates of the President's prerogatives, such as George Washington and Alexander Hamilton.  As President, Washington on several occasions said that he could not undertake offensive military actions without Congress' approval.  Hamilton is especially significant, because his views on the need for a strong executive went far beyond those of his contemporaries.  Yet Hamilton made it very clear that he read the Constitution not to allow the President to begin a war – as he put it at one point, "it belongs to Congress only, to go to war."

Comments

[OO]

yea well if the founders were infallable we wouldnt need amendments. plus they disagreed about wording & meaning anyway. 3/5ths of a person indeed...

[Jerry]

Hey piss faktory, why don't you just kill yourself already!

[OO]

its not my pursuit of happiness !

[Jerry]

But it's everyone elses!

[OO]

my dog disagrees

[OO's Dog]

No he doesn't. I'm tired of you trying to get me to lick gravy off your nut sack, you sick pervert.

[CE]

...if the founders were infallable we wouldnt need amendments...

Fortunately, they thought of that, too. If you don't like some provision of the Constitution, you can try to amend it.

[Spencer]

Wasn't this settled in Korea, vietnam, nicaragua, etc? I mean, isn't that the "police action"? This arguement, while I like it, holds no weight in the view of 20th century american military action under order of the executive branch.

[R C Dean]

Wasn't this settled in Korea, vietnam, nicaragua, etc?

Only if you think the government's right to discriminate against blacks was settled by Jim Crow.

How often do we have to repeat this? Just because something unconstitutional is done over and over, doesn't make it Constitutional.

[Spencer]

FTR,

I agree, but was simply making the case that will be made. There is precedent.

[John]

But the Congress and the President have a right to interpret the Constitution as well. I get tired of the idea that only the courts have the responsibility or right. In the end, the Constitution belongs to the people. If the people via their elected representatives decide that "declaration of war" means "congressional authorization for the use of force", then that is what it means.

We are the guardians of our own form of government and freedom. Worshipping a document is not the way to go.

[Law Student]

The document is supposed to protect us from the whims of the people as well. You can't vote away your rights. Obviously it no longer does that, if it ever did.

[John]

See below. The people have a say in what the document means. It is their document and their government. There is obviously some limit to that. You can't say black means white. But, in grey areas the political process should probably rule.

[Resto Druid FTW]

What year are you? God, it was the three of the worst years of my life...

[prolefeed]

The whole point of the Constitution is divided powers to produce a weak government. Giving courts the absolute authority to say what the Constitution means violates that intent.

If a court violates the Constitution, all sorts of people have the right and the duty to call bullshit -- the executive branch, the legislative branch, empaneled jurors, voters. Same with executive or legislative abuses -- no deference should be given to any official who oversteps their very limited powers granted by the Constitution.

[Tulpa]

Limited govt != weak govt

[Spencer]

this is satire?

[John]

Only if you are too fucking stupid to get the point. There are a lot of layers to Constitutional interpretation. RC always has a bug up his ass because recently Congress hasn't "declared war". Well, they have given the President authorization to use force. To say that doesn't discharge their duty under the Constitution because they don't use the phrase "declaration of war" seems pretty damned pedantic. Indeed, as Pro points out below they haven't called them declarations of war not out of deference to the exectutive but the opposite. They haven't called them declarations of war because they want to restrict the power of the exectutive by not granting it all the powers that come with a declaration of war. Given that, it seems even more rediculous to claim that the authorizations are not meeting Congress' obligation.

The larger point that you don't seem to get is that what the Constitution means is something that is hashed out among all three branches of government and ultimately by the people themselves. "Power to declare war" can mean a lot of things. What is a "war". Is a single bombing mission a "war". Maybe it is maybe it is not. There are a number of equally reasonable way to look at it. Is an "authorization to use force" not a declaration of war? Again, there is no one set answer. Which answer we choose is to some degree a function of the political process. And it should be. The people should have a say on what the Constitution means, especially in the grey areas. It is their document and their government. To say otherwise is to degenerate our freedom and form of government into some kind of primitive form or hero worship.

So, no it is not satire. If you have an intelligent point to make, make it. But before you do, at least try to fucking understand what is being talked about.

[R C Dean]

RC always has a bug up his ass because recently Congress hasn't "declared war". Well, they have given the President authorization to use force.

Slow down, John. I've never been a believer in the magic words "Declare War." I've always thought an AUMF met the Constitutional requirement.

In Libya, though, Congress hasn't authorized a damn thing, and it meets every definition of war I can think of.

Is a single bombing mission a "war".

It was on December 7, 1941.

[#]

this has been my thoughts too... i dont care so much about using the term "declaration of war"... what matters is that Congress gets to authorize force.

[Pro Libertate]

Something to keep in mind is that dumping bombs on people might make them decide that they are at war with us, regardless of what we think. Then that little bombing mission becomes a war that we have to deal with. Which is why even smaller actions should require congressional action.

[wylie]

Something to keep in mind is that dumping bombs on people might make them decide that they are at war with us, regardless of what we think.

Fucking ingrates. Try and give someone clear lots to develope and free metal, and what do they do, declare fucking war. No appreciation from people, I tell ya.

[Spencer]

I think I hurt someone's feelings!

Saying the people can elect people who interpret items to match their view undermines the very point of the constitution. Otherwise you have majority rule, wich leads to tyranny of the majority. Some things are NOT OPEN to interpretation- including specifically assigned powers of government branches. To say we can interpret these willy-nilly to whatever the majority thinks we should at any given time is to say that there is no governing law save the one the majority chooses at the time.

Want to interpret something in the constitution in a different way? AMMEND IT!

That is why I asked if it was satire- because it was plainly too retarded of a stance to be real... or that's what I thought at the time anyway.

[Free2Booze]

"They haven't called them declarations of war because they want to restrict the power of the exectutive by not granting it all the powers that come with a declaration of war"

So here's a question. Yes, the President is the commander and chief of the military, but the authority over the military seems like it should be much more substantial than the President.

Beyond declaring war, making rules for the government and regulating the military; the necessary and proper clause seems like it should be some pretty powerful shit, specifically because they can create laws, not just for the execution of the powers of congress, but the execution of any and all powers granted by the constitution.

I know times change, and precedents have been set, but it seems to me like the President was supposed to be congress's bitch.

[kbolino]

Nice eggcorn there. It's commander-in-chief, by the way.

[Free2Booze]

"It's commander-in-chief, by the way"

Gay porn title?

[R C Dean]

But the Congress and the President have a right to interpret the Constitution as well.

I agree, they do, so long as they accept the concomitant obligation to refuse to engage in unconstitutional activity. Since they have abrogated the obligation, they have forfeited the right.

Aside from that, there has to be a final arbiter of Constitutional questions. Of the three, SCOTUS is by far the best choice.

[Tony]

The founders owned slaves, though. So who cares what they thought? I'm betting they wouldn't be cool with our current president on the merits of his skin color alone.

[Spencer]

It's rough when you can't tell if its a troll or a spoof troll.

[MNG]

I think what Tony is getting at is this: who cares how the Founders imagined and expected provisions to be applied? What matters is what they wrote.

Of course given what they wrote imo Obama has violated the Constitution...

[MNG]

Well, unless one wants to use the argument noted above that these recent operations are "police actions" and not "wars" and so the Art. I requirement that Congress declare war doesn't apply, but man that seems strained to me.

[prolefeed]

Well, when the generals on TV are straining really hard to come up with euphemisms to describe what they've been ordered to do without resorting to the W-word -- dammit, it's a war. What Obama did is blatantly unconstitutional.

[Rich]

the generals on TV are straining really hard to come up with euphemisms to describe what they've been ordered to do

"To the nose!"

[BushPig Obama]

I think I can do whatever I want.

[Free2Booze]

Congress also likes to pass the buck. They could very easily pass a law stating that any deployment of forces outside of the US required congressional approval. They could also clearly define the procedures for declaring war, and what military actions fall under the definition of war.

[JT]

Well no, what Tony, or pretend Tony, or perhaps a different Tony, as it certainly sounds less intelligent, seeems to be suggesting, is that the fact that some of the founding fathers owned slaves makes the Constitution irrelevant. I would have to say that the original article undersells it's point. It is quite plainly unconstitutional from an originalist perspective, but it is also unconstitutional from a textualist perspective, a literalist perspective, as well as the historical perspective including not just the founders, but all the way through FDR.

[Paul]

You don't have to go that far back to defend Obama, Tony. You can always fall back on the tried-and-true:

But Bush!!!1!!11!11

[Pro Libertate]

At what point is attacking Bush the same as attacking Obama? Frankly, the Venn diagram of the two presidents has more overlap than not.

[Paul]

But if you cross your eyes in that way you have to do with those stupid posters that were really popular in the 90s, Obamas circle appears to magically separate from Bush's. The problem is if you're still looking at the poster when you let your vision clear up, the circles crash together violently.

[sloopyinca]

Ha ha ha ha. You dumb bastard. It's not a schooner... it's a Sailboat.

[Tony]

(The real one)

I think Congress should have the sole authority to declare war. But it was the Bushies who further expanded executive power beyond what it already was. This ship has sailed, unfortunately.

[Paul]

You know, the ship can be sailed back. Wasn't that what Obama campaigned on?

[Restoras]

Don't be so inconvenient.

[prolefeed]

You know, the ship can be sailed back. Wasn't that what Obama campaigned on?

That would require unrealistic levels of hope to expect Obama to change what Bush did.

[Spencer]

I think you're mistaken. It was Truman and Johnson (fellow alum of Texas State!) who expanded executive power into police action status.

[Pro Libertate]

I said this below, but that's not a good example. Congress authorized the invasions of Iraq and Afghanistan. There's no formal form for a declaration of war, so Congress just saying "Go blow those dudes up!" is likely enough.

I'm not entirely clear on why Congress resists calling its joint resolutions authorizing force "declarations of war", but that seems to be something they're adverse to doing.

[Spencer]

No one wants to be outed as a warmonger. Closeted warmongering is all they an abide.

[Pro Libertate]

It's not war. It's corrective action.

I wonder if there's almost an etiquette issue here? You know, "war" is such a mean and absolute term. We prefer now to do something lesser and more limited.

[Rich]

"I corrected them."

[H man]

Considering the department of defense used to be called the department of war there is an element of PC language going on here. That said I'm o.k. with an authorization of force so long as Congress expressly does so. Which they did not do in this case.

[Vermont Gun Owner]

We have more elegant weapons for this civilized age.

[Paul]

It's not war. It's corrective action.

At first glance, I read this as coercive action. Seriously.

[prolefeed]

I'm not entirely clear on why Congress resists calling its joint resolutions authorizing force "declarations of war", but that seems to be something they're adverse to doing.

It's called plausible deniability. If you declare an actual war, and it goes badly, and you voted for it, you're on the hook.

A vaguely worded resolution, OTOH, leaves some wiggle room for protestations of "OMG, that wasn't what we meant! Bad Bush / Obama."

[Pro Libertate]

The buck stops somewhere else!

[Free2Booze]

It's not a hard problem to fix. Congress has the authority to create laws regarding the execution of any power granted to the federal government by the constitution.

The congress can't change the fact that the President is the Commander in Chief, but they can regulate when and how that power can be used.

[Paul]

But DailyKos said Obama followed procedure!

[kc]

oh, well, OK then.....

[Pro Libertate]

These types of actions can and should get Congressional approval. Otherwise, the president really has stolen all of the war power from Congress. If people don't see why that's horrifically dangerous, we're in big trouble.

It's a different issue when U.S. territory is under attack, but even then, there's dealing with the imminent threat, then there's continued warfare.

[John]

It is up to the Congress to steal it back. There is more to the Constitution than what our robed over overlords tell us it is. Congress has the responsibility and right to interpret the Constitution.

[Pro Libertate]

That's absolutely right. One of the biggest problems in all of this expansion of government has been the willingness of Congress to give up its prerogatives--the war power, for one, but also the legislative power (administrative agencies and their "rule" making).

[yonemoto]

US territory doesn't even need to be attacked. If some country says, "we declare war on you" and starts to mobilize troops in our direction, I'd say miltary action would be pretty justified. Non-country entities should probably be handled extramilitarily, though (ahem, letters of reprisal, ahem).

[Pro Libertate]

I didn't really mean that literally. Troops moving towards a base overseas would be enough, for instance.

[FDR]

sorry bout that, guys. Dropped the ball on that one.

[lil w]

me too

[cynical]

You have a very lax definition of "troops".

[MNG]

Those who might want to argue that some military actions that fall short of "war" are under the Executive's province might equate them to the First Barbary War about which Wiki notes "Although Congress never voted on a formal declaration of war, they did authorize the President to instruct the commanders of armed American vessels to seize all vessels and goods of the Pasha of Tripoli "and also to cause to be done all such other acts of precaution or hostility as the state of war will justify."

So it's a bit muddled but it seems they thought bound by having Congress give some kind of permission...

[John]

Also the Pasha declared war on the US. It seems pretty stupid to say the President can't act when the other country declares war on the US.

[Pro Libertate]

That's generally been accepted--if Congress approves some limited use of force, no one is going to scream about the lack of a formal declaration of war. But the more things start looking like war, the less that's true.

I think most legal scholars generally view the authorizations for Iraq and Afghanistan to be legally equivalent to declarations of war (whatever their other infirmities might be).

This is less of an issue when Americans are attacked overseas or, of course, here. Then the president could act immediately.

[Pro Libertate]

One reason for AUMFs rather than declarations of war, now that I think about it, is that declarations of war have been traditionally just statements that a state of war now exists between the countries. That triggers a lot of power in the president.

With an AUMF, Congress is defining what's being permitted. In some sense, this might actually impinge on presidential prerogatives, as he, in theory, should be conducting the war as he sees fit, once the declaration has happened. I think I prefer more control of affairs in the hands of Congress, though.

[yonemoto]

well, until there's too many cooks in the kitchen. There's a reason why we don't have 435 generals.

[yonemoto]

at the top.

[Pro Libertate]

Congress has to act in concert, so that really can't happen.

[yonemoto]

"Congress has to act in concert, so that really can't happen."

And where does it say that in the constitution?

[Pro Libertate]

What can one or ten Congressmen do? They require majorities, and usually in both houses, to do anything.

[yonemoto]

You don't think congresscritters finaigle little things here and there from the DOD?

[joshua Corning]

You don't think congresscritters finaigle little things here and there from the DOD?

Charlie Wilson says yes.

[prolefeed]

as he, in theory, should be conducting the war as he sees fit, once the declaration has happened.

Congress has the sole authority to appropriate funds to carry on any military activity, and the power to tell the president how those funds can and can't be expended.

Yes, Congress can give broad latitude about how those funds are used to prosecute that war if they think the executive branch is handling things appropriately, but they hold the fucking purse strings and should not give up that power to the executive branch.

[Pro Libertate]

I was thinking about that, but the way things are now, the president may have enough money at any given time to conduct a quick little war without getting more money from Congress.

[prolefeed]

Well, good luck with that short war thing. Hasn't happened since Granada, IIRC.

In any event, Congress has the ability to retaliate for any unauthorized short little wars by yanking really hard on the purse strings. "Oh, you mean you wanted to PAY your White House staffers? We wanted you to not invade without getting our authorization. Guess neither of us gets what we wanted."

Only one president being made an example of one time would put a halt to that sort of overreach real fast.

But that would take Congressional cojones.

[Pro Libertate]

Major cojones. It's a flaw in letting the president run off and start something. Once we have troops on the ground, threatening to cut off funding will get you a president going around claiming that you're trying to get soldiers killed.

[BushPig Obama]

HA, I can use TARP funds to finance my bloody adventures.

[cynical]

I think defining the conditions and objectives (in terms of "what are we fighting for", not strategic objectives) and any special rules of military conduct are similar in nature to the declaration itself, and properly belong in the realm of public debate; that is, to Congress. But once Congress gives a President a mission, a set of restrictions on that mission, and the funding necessary to achieve that mission, determining how to succeed is a task for the president and his subordinates.

[Pro Libertate]

So, in theory, the president could take all of the money, buy a shitload of prostitutes and cocaine, fly them all to the offending country, and end hostilities that way?

[Brett L]

Is this the Warlock Doctrine? Certainly better than the Powell Doctrine.

[Pro Libertate]

This explains why Charlie Sheen was outpolling Palin and Obama for 2012.

[Tin Pot]

The Democratic Republic of Bassackwardstan hereby declares war on the US. No trannies.

[Pro Libertate]

Good point--everyone would declare war on us then, wouldn't they? Except maybe Merkel. She's already got plenty of whores and blow.

[.]

Well he could as long as he wasn't Bill Clinton. That jerk would keep them all for himself.

[anon]

So, in theory, the president could take all of the money, buy a shitload of prostitutes and cocaine, fly them all to the offending country, and end hostilities that way?

Fuck, I'd renounce my citizenship and join the other side for that kind of war.

[Free2Booze]

You're right. Eight of the enumerated powers are directly related to the military. The "necessary and proper" clause, while it doesn't mention the military directly, would also apply.

For a document that doesn't mention too many specifics, this is one area where the constitution does provide a great amount of detail. That should tell us something.

[Restoras]

Yes yes yes checks and balances and all that but the Founders are all dead and the Constitution is thier living, breathing golem so it really just means what we need it to mean at the moment...

[rst]

I'm no lawyer, but the unconstitutionality seems a slam dunk. There can be no spending that is not specifically appropriated, and the War Powers Act lays out quite clearly the condition in which the president may engage in military action absent Congressional authorization.

Why is this even a question?

[Pro Libertate]

'Cause most people are more loyal to their parties than to the Constitution or the concept of limited government.

[Scott66]

It is a question Congress does not really want asked. Congress is quite happy to give up responsibility for difficult decision making. Taking a forceful stand might impair their reelections.

[Pro Libertate]

Bingo.

[joshua Corning]

I have my doubts congress would lose one seat if they decided to call back the troops from Lybia.

In fact if the Republicans had a brain cell they would call them back right now and make insure that Obama would lose in 2012.

There is something more complex going on here.

[Paul]

Congress is quite happy to give up responsibility for difficult decision making. Taking a forceful stand might impair their reelections.

See FCC and Net Neutrality regulation.

[R C Dean]

Yeppers.

Although, in the unlikely event everything comes up roses, I'm sure Chuck E. Schumer will be leading the charge to the TV cameras to take credit.

[Brett L]

Well, I'm thinking there is a strictly Constitutional argument, which this probably is. But, just because something is constitutional doesn't mean that it is a good precendent or good governance. Congress should be kicking and screaming, but I don't think its a case for impeachment.

[#]

So when this whole thing hits 60 days, what will Obama's excuse be for not needing a congressional resolution as described by the War Powers act of 1973?

[Pro Libertate]

Mandate from the people!

[Free2Booze]

Got in the way of his golf game.

[R C Dean]

That the War Powers Resolution is unconstitutional, of course.

[bob]

Hey, Barack has such an aversion to the words like MUSLIM TERRORIST, WAR, Barack now calls War, Kinetic Military Action. Soon we will be able to slow this Kinetic Military action down enough to become Potential Military Action which we will then put in to a giant Battery (Will be a Green Battery) and save it up for later Kinetic Military Action... OMG

[OO]

u mean obama has an adversion to ur words.

[kbolino]

Did you call the last one George too?

[Enjoy Every Sandwich]

The position of Republicans and Democrats alike on the Constitution can be summed up thusly: when it supports what we want to do, it's holy writ; when it interferes with what we want to do, it's meaningless.

[Tim]

If you're going to hold Presidents to these high so-called standards then we won't ever be able to attack anyone.
And what kind of world would that be?
I mean imagine the last decade without operation Iraqi/Afghani Freedom or the various and sundry surges or drone attacks on Pakistan, or Yemen.

[mitch]

People try to make this Libya thing seem just like the attacks on Afghanistan and Iraq, but Bush got some kind of Congressional OK for those, and Obama has got zilch from Congress for Libya.

[The Fucking Commerce Clause]

You want to know who authorized this? I DID!
Now STFU or or I'll authorize your asses into Gitmo.

[cynical]

Sorry, pal, you're a Congressional power too.

[Matrix]

do I smell an Impeachment?

[Brett L]

This batch of Republicans do not appear to be as Quixotic as Newtacular Titties.

[Pro Libertate]

It's Newcular Titties and he's litigious about his new name.

[Brett L]

I's sorry Massa Newcular.

[cynical]

Sadly, no. Most Republicans are fine with ceding the War Power to the president. It would be interesting if Libya sent an envoy to file suit against the president in federal court.

[Tim]

Come to think of it, the commerce clause is the STEVE SMITH of constitutional law...

[Spencer]

Hey, my dad's name is Steve Smith...

[Nipplemancer]

are you half-sasquatch?

[Gov. Brown]

I tried to declare war on RDAs but the Republicans wouldn't allow it.

So there is a recent precedent.

[george bartz]

how many times can he violate the constitution and b not be impeached, from no legal birth certificate to calling the un council on arizona and now acts of war on libya, when does congress end it all and get him out

[Senator Reid]

when does congress end it all and get him out

They don't, George - not as long as I and my party are running the Senate...as we will be until the end of his first term.

[kbolino]

I don't think the Constitution actually requires a "legal birth certificate," since there was no such thing in the 18th century.

[sloopyinca]

OT, but Ralph Nader hates niggers.

[joshua Corning]

Not so off topic really.

Nader is anti-war so he is anti-Obama so one should expect a hit piece calling him a racist.

The democrats have been pulling this shit for the past 3 years. Why be surprised when they do it to one of their own?

[AdmiralAkbar]

Why is this suddenly an issue? Presidents have been starting war without congressional approval since forever.

[Tony]

Why do you think?

Republicans are shamelessly trying to retroactively justify Iraq based on this.

They have flip-flopped from being pro-no-fly-zone to against in a matter of days. They have no principles except everything Obama does must be criticized. They are taking positions they used to regard as treasonous. They went from advocating for an imperial president to thinking it would be prudent for Rand Paul to filibuster while Benghazi was assaulted. I can't believe that they're actually displaying their lack of shame on a matter of war.

[joshua Corning]

Republicans are shamelessly trying to retroactively justify Iraq based on this.

Actually i would ague that that the proof that the republican controlled house is trying to retroactively justify Iraq by not passing a resolution that prohibits Obama from using force in Lybia.

The problem with questions of war's of choice is that The dems and republicans both are not partisan enough.

[Free2Booze]

To think, only 11 years ago, the repubs told us that the United States shouldn't be the world's policeman.

[usd law student]

usd law seems to be able to track me down even whilst I peruse my favorite sites on the internets. Anyways, I often wonder what it would have been to be a student in Professor Obama's Con Law class.