Current Events vs. Founding Documents

The Power To Declare War

Posted by Mark Musselman on March 27, 2011

Constitution, executive power, Legislative branch, Presidential power

Entry 83 

Current Event

According to the Wall Street Journal; March 22, 2011 (full article available on-line)

WASHINGTON-President Barack Obama Monday formally notified Congress the U.S. had begun military attacks on Libya, prompting complaints from lawmakers that the president waged war without congressional consent, appearing to contradict his own previous position.

Lawmakers continue to raise questions about the legality and purpose of the U.S. participation in Libyan air strikes and patrolling of the No-Fly Zone. WSJ's Siobhan Hughes has details.

In a letter to congressional leaders, the president said the U.S. had "commenced operations to assist an international effort authorized by the United Nations (U.N.) Security Council" and "to prevent a humanitarian catastrophe and address the threat posed to international peace and security by the crisis in Libya."

Presidents over the decades have conducted military operations without prior congressional approval, including Harry Truman in Korea, George H.W. Bush in Iraq and and President Bill Clinton in Serbia. Congress in 1991 approved the Iraq military action, five months after Mr. Bush deployed forces to the region in response to Iraq's invasion of Kuwait. The military action in Libya, which Congress wasn't asked to approve, irked lawmakers.

Sen. Jim Webb, (D., Va.,) said in an interview Monday with MSNBC, "We have not had a debate and I know that there was some justification put into place because of concern for civilian casualties, but this isn't the way that our system is supposed to work."

House Democrats held a conference call over the weekend to discuss Libya, and support among lawmakers was mixed, a congressional aide said. Frustration appears to be coming from rank-and-file lawmakers left out of Mr. Obama's Libya briefing to committee chairmen Friday.

In 2007, Mr. Obama, then a presidential candidate, said, "The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation."

….

Mr. Obama's notification letter does not satisfy the constitutional requirement that Congress approve military action, says Lou Fisher, former researcher with the Congressional Research Service and an expert on war powers. Mr. Fisher also raised objections to Mr. Obama citing United Nations authorization in his letter.

"It's impossible for Congress to take its war powers and give it to the U.N.," Mr. Fisher said. "Other than defensive actions—and there's no defensive actions here—this has to be done by Congress."

The president, with his letter, appeared to meet the requirements of the 1973 War Powers Resolution, which says only that in cases where the president doesn't seek prior approval from lawmakers, the president must notify Congress within 48 hours of committing armed forces to military action and puts a 60 day deadline on such actions.

House Speaker John Boehner doesn't believe the president always needs congressional approval to go take military action, a spokesman for the Ohio Republican said. However, "members of Congress from both parties, as well as the American people, are demanding the administration do a better job answering some basic questions about the scope and purpose of our mission in Libya, America's role, and how it will be achieved," said the spokesman, Brendan Buck.

…

A number of Democratic and Republican lawmakers are concerned about the White House's air assault on Libya, but Rep. Dennis Kucinich (D-OH) raised the rhetoric to 11 on Monday, suggesting President Obama should be impeached.

"President Obama moved forward without Congress approving. He didn't have Congressional authorization, he has gone against the Constitution, and that's got to be said," Kucinich said in an interview with Raw Story.

"It's not even disputable, this isn't even a close question. Such an action -- that involves putting America's service men and women into harm's way, whether they're in the Air Force or the Navy -- is a grave decision that cannot be made by the president alone."

According to Kucinich, Obama's decision "would appear on its face to be an impeachable offense," though he questioned whether Congress would ever move forward with a trial in practice.

As reported earlier by Politico, Kucinich raised the specter of impeachment in a conference call with Democratic lawmakers on Saturday.

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According to the Wall Street Journal: Nov 29, 2007 (full article available on-line)

Democratic presidential candidates have steered clear of impeachment talk on the stump, but Sen. Joe Biden unequivocally told a New Hampshire crowd today that he will move for impeachment if the Bush administration bombs Iran without congressional authority.

“The President has no authority to unilaterally attack Iran and if he does, as Foreign Relations Committee chairman, I will move to impeach,” Biden told a crowd of 60 at a Seacoast Media Forum. The site also reported that Biden said he is currently preparing a legal memorandum on his impeachment threat.

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Presidents vs. The Constitution

Founding Document

The Constitution: Article 1 - Section 8 (excerpts)-

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

 …..

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

We the People:

Attacking another country with military force is an act of war.   Only the Congress holds this power and it must give prior approval. Who remembers the intentions to “temporarily” participate in the Vietnam War and the word “police action”?

Even Republican Speaker Boehner is not inclined to exercise this check on executive powers. Why? It is because we tolerate it. The founders wisely gave this authority only to the peoples’ branch of government because it was “the people” whose lives were placed in harm’s way by such decisions.  And the founders expected the votes of the elected officials to be counted and recorded.  

Every time we allow our leaders to exceed their Constitutional authority, or when we tolerate inaction to enforce it, a reduced reference is established for the future; and so goes the diminished progression of our liberty.