Where I stand on Libya, and Information about Constitutional Authority

Op-Ed

In response to questions about United States military action in Libya, I wanted to share this letter that House Speaker John Boehner sent to President Obama on Wednesday, March 23. I agree with the Speaker's remarks, and believe his questions embody those of Congress and the American people. I remain deeply concerned about our involvement in Libya, and, in the strongest terms, urge the President to provide a clear and substantive explanation to Congress and the American people about the goal of this mission.

In short, there has been an outcry from the American people for clarity on this mission in Libya, and in entering a third battlefront after nearly ten years of war, our nation deserves a clear answer from our President.

Click here to read Speaker Boehner's letter to President Obama.
(Link: http://www.speaker.gov/UploadedFiles/POTUSLetter_032311.pdf )

Over the last week, I, along with many others, have had questions about which branch of the federal government--the executive or legislative--has the constitutional authority to authorize military force. Rather than issuing an uninformed response, my staff and I chose to do some research and share with you our findings.

While I'm not yet convinced of the need for the President to have committed our forces, acting unilaterally is a precedent set by many presidents, including Ronald Reagan, and I am persuaded that, because the President is made Commander-in-Chief by the U.S. Constitution, he is empowered to use the United States military to protect our nation and interests abroad.

Even so, since hostilities in Libya were well known for weeks prior to U.S. military involvement, I am deeply troubled by the President's lack of communication with Congressional leaders about why our military has been called to action now, and what, exactly, are the national security interests he seeks to protect.

On constitutional authority, I found this Department of Justice memo, written by former Deputy Assistant Attorney General John Yoo, to be particularly helpful in explaining the both the President's ability to authorize military force and the context for his constitutional authority:

Click here to read the Department of Justice memo.
(Link: http://www.justice.gov/olc/docs/memo-military-force-iraq.pdf )

Excerpts:

"…the President has authority under the Constitution to initiate the use of military force to defend the national security of the United States. Article II expressly vests in the President, and not in Congress, the full "executive Power" of the United States. U.S. Const, art. II, § 1, cl. 1. Article II also provides that the President "shall be Commander in Chief of the Army and Navy of the United States." U.S. Const, art. II, § 2, cl. 1. The Framers understood the Commander in Chief Clause as investing the President with the fullest range of power understood at the time of the ratification of the Constitution as belonging to the military commander. Taken together, these two provisions constitute a substantive grant of broad war power to the President." (Page 2)

"Moreover, founding documents prior to the U.S. Constitution, such as the South Carolina Constitution of 1778, explicitly prohibited the Executive from commencing war or concluding peace without legislative approval. S.C. Const, art. XXVI (1776), reprinted in Francis N. Thorpe, ed., 6 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws at 3247 (1909). See also Articles of Confederation, art. IX, § 6, 1 Stat. 4, 8 (1778) ("The United States, in Congress assembled, shall never engage in a war . . . unless nine States assent to the same."). The framers of the Constitution thus well knew how to constrain the President's power to exercise his authority as Commander in Chief to engage U.S. Armed Forces in hostilities, and decided not to do so." (Page 3, emphasis added here)

On the power of Congress to "declare war":

"Because the President possesses broad constitutional authority as Chief Executive and Commander in Chief to direct the use of military force against Iraq, congressional authorization is legally unnecessary. Congress has the power to "provide for the common Defence," to "raise and support Armies," to "provide and maintain a Navy," and to appropriate funds to support the military, U.S. Const, art. 1, §§ 8-9, to be sure, but it is the President who enjoys the constitutional status of Commander in Chief. As such, the President has full constitutional authority to use all of the military resources provided to him by Congress. Indeed, within the past half century, Presidents have unilaterally initiated military actions in Korea, Vietnam, Grenada, Lebanon, Panama, Somalia, and Kosovo, without congressional authorization." (Page 5)

"The Constitution does vest in Congress, and not the President, the power to "declare War." U.S. Const, art. I, § 8, cl. 11. The Constitution nowhere states, however, that Congress has the additional power to "make" or "engage" or "levy" war. By contrast, Article I, Section 10 addresses the power of states to "engage" in war, U.S. Const, art. 1, § 10, cl. 3, while Article III describes the offense of treason as the act of "levying war" against the United States, U.S. Const. art. Ill, § 3, cl. 1. Thus, the constitutional text itself demonstrates that the power to "declare" war was a narrower power than that of engaging, making, or levying war. By placing the power to declare war in Congress, the Constitution did nothing to divest the President of the traditional power of the Commander in Chief and Chief Executive to decide to use force. Congress's ability to restrain the President from using military force arises out of its control over military resources, and not out of its power to declare war." (Page 5)

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