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The Record - No-Fly Rationale Won't Fly


Location: Unknown

By Scott Garrett

On the first day of Operation Odyssey Dawn a week ago, the American military led an international effort to enforce a no-fly zone over Libya by firing more than 100 Tomahawk cruise missiles and dropping more than 40 bombs on strategic targets in Libya.

Having directed the U.S. military to engage in this conflict without the authorization of Congress, President Obama's foray into military combat raises serious questions regarding the separation of war powers as mandated by the Constitution.

Two days after U.S. bombs began raining down on Libya, Obama sent a letter to congressional leaders arguing that as commander-in-chief, he had the authority to initiate military action in Libya without the consent of Congress.

Furthermore, the president asserted that the United States is not engaged in a war, but rather is just acting as a participant in an international humanitarian effort to enforce U.N. Security Council Resolution 1973. Obama concluded his letter by stating that the letter itself served as his official notification to Congress, as required by the War Powers Resolution of 1973, of his deployment of military force.

His letter raises more questions than it answers. Chief among them: Were his actions constitutional? Does the Constitution allow for the president to engage in military action without first getting the approval of Congress?

The debate over the appropriate constitutional separation of war powers between the two branches has existed since the earliest days of the Republic. In light of recent events, I believe it's time we revisited it.

The differentiation between which branch of government initiates war and which branch conducts it was a hot topic of debate at the Constitutional Convention in Philadelphia. At the root of the struggle was the debate over whether to grant Congress the power to "make" or "declare" war.

The power to declare war

In the end, the founding fathers decided to grant Congress the power to initiate wars and left to the president the authority to conduct wars.

Reflecting on the debate over what we now know of as Article I Section VIII of the U.S. Constitution, James Madison once said, "In no part of the Constitution is more wisdom to be found than in the clause that confides the question of war or peace to the Legislature, and not to the executive."

It was not long ago that President Obama agreed with the sentiments of the father of our Constitution. In 2007, then-Sen. Obama said, "[T]he president does not have the 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."

What's caused the president's about-face? Our country was not under attack nor was it faced with an imminent threat. Why did he think could unilaterally direct a military attack without congressional authorization?

The founding fathers intended for Congress, not the president, to determine when and where the nation engages in military combat. Fearing a strong executive, the founders deliberately avoided granting such an important responsibility to one person.

Furthermore, they never would have relinquished it to an international body like the United Nations or the Arab League, as was the case with President Obama.

Despite the provisions included in the Constitution, 222 years of history and debate haven't left us with a guide detailing how the United States should decide to go to war.

Congress has declared war only five times, the last being World War II. Then in 1950, President Truman went to war in Korea without the authorization of Congress, setting the precedent for unilateral military engagement by the president.

In the shadow of the Vietnam War, Congress sought to clarify the war powers of the legislative and executive branches when it passed the War Powers Resolution in 1973 to "ensure the collective judgment of both the Congress and the president" will apply to the introduction of the U.S. military into hostilities.

Ostensibly, the law limits the president's ability to commit the armed forces to hostilities to no more than 60 to 90 days, absent a declaration of war or congressional authorization.

Additionally, Section III of the War Powers Resolution requires the president to consult with Congress, not inform it of military deployments.

In the nearly 40 years since the enactment of the law, presidents have proven particularly adept at rendering the War Powers Resolution impotent. President George H.W. Bush did not receive congressional authorization when he committed troops to Somalia. President Clinton as well did not have approval from Congress when he sent troops into Somalia and ordered the use of military force in Haiti, Bosnia and Kosovo.

Unilateral action

Legislative scholars have argued that Congress, in theory, can combat unilateral presidential action by drafting retroactive authorizations that define the mission of military action and impose limitations on the president's power to conduct the war.

Taken at face value, the War Powers Resolution perversely reverses the roles of the legislative and executive branches as prescribed by the Constitution, allowing the president to initiate action while the Congress determines how the war should be prosecuted.

But even in the absence of congressional authorization, no president has ever had his policy reversed.

Ironically, the War Powers Resolution may have effectively robbed Congress of its constitutionally mandated war powers.

The developments in Libya that led us to this point have been simmering for weeks, and President Obama had ample time not only to consult Congress, but also to seek its authorization to use military force in Libya.

The president's unilateral actions raise serious questions about the constitutionally prescribed separation of war powers. A public dialogue about the constitutionality of the War Powers Resolution is sorely needed, and should the Resolution fail to pass constitutional muster, Congress must have the courage to replace the law with one that truly adheres to the Constitution.

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