Tuesday, March 22, 2011

Obma's war: Is it constitutional? War Powers Act?

Show us where in Article II of the U.S. Constitution it says the President can declare war. Sen. Robert C. Byrd (D-WV) couldn't find it there, either. Good question. Got any answers? We don't.

by Michael Boldin

With military action taking place in Libya right now, the essential question must be asked: Is it even Constitutional? For those of you who don’t want to read more than a sentence or two, here’s the short answer. Absolutely not.


The ninth and tenth amendments, while they didn’t add anything new, defined the Constitution. In short, they tell us that the federal government is only authorized to exercise those powers delegated to it in the Constitution…and nothing more. Everything else is either prohibited or retained by the states or people themselves.
What does this have to do with Libya? Well, whenever the federal government does anything, the first question should always be, “where in the Constitution is the authority to do this?” What follows here is an answer regarding American bombs being dropped on Libya.


Ever since the Korean War, Article II, Section 2 of the Constitution has been regularly cited as justification for the President to act with a seemingly free reign in the realm of foreign policy – including the initiation of foreign wars. But, it is Article I, Section 8 of the Constitution that lists the power to declare war, and this power is placed solely in the hands of Congress.

Article II, Section 2, on the other hand, refers to the President as the “commander-in-chief of the army and navy of the United States.” What the founders meant by this clause was that once war was declared, it would then be the responsibility of the President, as the commander-in-chief, to direct the war.

Alexander Hamilton clarified this when he said that the President, while lacking the power to declare war, would have “the direction of war when authorized.”

Thomas Jefferson reaffirmed this quite eloquently when, in 1801, he said that, as President, he was “unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.”

In Federalist #69, Alexander Hamilton explained that the President’s authority:
“would be nominally the same with that of the King of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy; while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which by the constitution under consideration would appertain to the legislature.”

James Madison warned us that the power of declaring war must be kept away from the executive branch when he wrote to Thomas Jefferson:

“The constitution supposes, what the history of all governments demonstrates, that the executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the legislature.”


If, like any legal document, the words of the Constitution mean today just what they meant the moment it was signed, we must first look for the 18th Century meaning of the words used. Here’s a few common 18th-century definitions of the important words:

War: The exercise of violence against withstanders under a foreign command.

Declare: Expressing something before it is promised, decreed, or acted upon.

Invade: To attack a country; to make a hostile entrance

What does this all mean? Unless the country is being invaded, if congress does not declare war against another country, the president is constitutionally barred from waging it, no matter how much he desires to do so. Pre-emptive strikes and undeclared offensive military expeditions are not powers delegated to the federal government in the Constitution, and are, therefore, unlawful.


Here’s the quick overview of how this all plays out:

In Constitutional terms, the United States is currently at war with Libya.
Libya is not invading the United States, nor has it threatened to do so.
Congress has not declared war. Barack Obama did.

Some would claim, and news articles are already reporting on it, that the 1973 war powers resolution authorizes the President to start a war as long as it’s reported to Congress within 48 hours. Then, Congress would have 60 days to authorize the action, or extend it.

The only question you should have to ask for this would be – “where in the Constitution is congress given the authority to change the constitution by resolution?”

It doesn’t. And that resolution, in and of itself, is a Constitutional violation. More on that in a future article, of course.

James Madison had something to say about such a plan when he wrote:

“The executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.” [emphasis added]

War Powers resolution or no war powers resolution – without a Congressional declaration, the president is not authorized to start an offensive military campaign. Period.

The bottom line? By using US Military to begin hostilities with a foreign nation without a Congressional declaration of war, Barack Obama has committed a serious violation of the Constitution. While he certainly is not the first to do so in regards to war powers, it’s high time that he becomes the last.

Michael Boldin [send him email] is the founder of the Tenth Amendment Center. He was raised in Milwaukee, WI, and currently resides in Los Angeles, CA. Follow him on twitter - @michaelboldin - and visit his personal blog - www.michaelboldin.com


– The Legendary

1 comment:

  1. Mr. Boldin, while I am also not happy with the President's introduction of military personnel into combat with Libya without a Congressional declaration of war, I find a fatal flaw with your constitutional analysis. How do you reconcile the "Necessary and Proper" clause in Article I, which arguably empowers Congress to delegate its war declaration power to the President, with your argument that it can't alter the Constitution through a joint resolution? That clause allows the Congress to enact legislation that will enable other branches of the government to execute their respective duties under the Constitution. As the President is the primary maker of foreign policy, which includes the occasional offensive use of the military, in his capacity as Commander-in-Chief, to realize the objectives thereof, Congress used that clause as the basis for its grant of limited authority to him to initiate combat through the War Powers Act of 1973. Therefore, unless the "Necessary and Proper" clause is interpreted by the Supreme Court to preclude delegation of its power to declare war to the executive branch, the War Powers Act of 1973 places the President on solid legal footing. Congress should never have attempted to reclaim this power from Presidential usurpation through such a weak-kneed statutory means!

    A constitutional challenge to presidential authority to conduct foreign policy being inclusive of the power to initiate offensive combat, should have been brought before the Supreme Court for resolution, prior to enactment of the Wars Powers Act of 1973, decades ago! However, as it failed to do so, it is now necessary for Congress to repeal that law, then launch such a challenge. Hopefully, the high court would not duck the issue, and provide this nation with some much needed clarification. The rule of law, particularly within the context of warfare, is critical to the preservation of our democracy!