The Daily Caller

The Daily Caller

Why the Libyan war is unconstitutional

Photo of John Samples
John Samples
Director, The Cato Institute's Center for Representative Government

War is commonly defined as “a state of usually open and declared armed hostile conflict between states or nations.” By that definition, the United States and its allies have been at war with Libya since late last week. “At my direction,” President Obama told Congress, “U.S. military forces commenced operations” in Libya.

Article I, section 8 of the United States Constitution states that “Congress shall have the power . . . to declare war. . .” Since Congress has not declared war on Libya, is American involvement in the Libyan war unconstitutional?

Some members of Congress think so. Rep. Scott Ringell, a freshman from Virginia, said that the Libya hostilities “should trigger a debate within Congress and [among] the American people about proper interpretation and application of [the] Constitution. I’m surprised more conservatives aren’t speaking out about this issue.” Some Democrats have spoken out questioning the validity of the action. In the past, Senators Obama and Biden both said the president lacks the authority to do what President Obama has done.

The question of the constitutionality of the Libyan effort depends on the original public meaning of Article I, section 8 of the Constitution. Vice President (then Senator) Joseph Biden recalled that meaning in a speech on the Senate floor on July 30, 1998. He noted that the original draft of the Constitution would have empowered Congress to “make war.” James Madison and Elbridge Gerry moved that the language be changed to “declare war” so that the president would have the power “to repel sudden attacks.” Biden pointed out that only one framer, Pierce Butler of South Carolina, thought the president should have the power to initiate war.

Biden concluded that under the Constitution, the president could not use force without prior authorization unless it was necessary to “repel a sudden attack.” Presidential candidate Barack Obama agreed in 2007: “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.”

Senator Biden also expounded on the framers’ reasons for limiting presidential discretion:

The rationale for vesting the power to launch war in Congress was simple. The Framers’ views were dominated by their experience with the British King, who had unfettered power to start wars. Such powers the Framers were determined to deny the President.

Of course, in 1998 and today, some claim the president has broad powers to initiate and carry on war under the “executive power” and the commander-in-chief clauses of Article II. But the framers rejected this “monarchist view” of the presidency.

The framers of the Constitution knew that the English king possessed certain prerogatives or discretionary powers to act for the public interest. Among these prerogatives was the power to declare war. He could also carry on undeclared wars. Yet the framers explicitly gave Congress the power to declare war. Apart from repelling sudden attacks, the Constitution is silent on the president’s power to conduct undeclared wars. Read against the English background, the text of the Constitution creates a constrained executive for the new nation.

  • Kurtis D. Davis

    Mr. Samples, thank you so very much for focusing on the one thing each and every elected official is sworn to do—preserve, protect, and defend our Constitution.

    If Libya is not war, then Pearl Harbor and the “911″ attack must be cake walks.

    The highest expression of our martial honor is the Constitution, and currently, about 6000 of America’s finest young people have died, so that government of the people, by the people, and for the people, does not perish from this earth.

    The President has violated his sacred oath. The Nobel Peace Prize is mocked, and the highest echelons of our military have been ordered to forsake their sacred oaths as well.

    War is an enormous undertaking, far beyond the capacity of a single individual—we need only look to Hitler, and numerous other fools, as an example of what can happen.

    Therefore, it is well that every good man stand up for the United States Constitution, and that lawful authority which it clearly defines.

    I am no pacifist, but one to recognize there is a right way and a wrong way to go about the grotesque reality of war.

    Have We the People spoken through our elected officials, that our voice might bring death in Libya?

  • Pingback: The Defense Authorization Bill Is Awful | Cato @ Liberty

  • lrgon

    “The problem we face as Americans and as the world’s strongest democracy is our growing failure to uphold and live by the words of the very documents upon which we were founded as a nation.”

    Hold it right there! we are a republic not a democracy.[article 4,section 4]. So right off the bat you got the very words of the “document” (the U.S. Constitution) all wrong.

    I pretty much agree with the rest of your post but we can’t give the liberal/ leftwing the advantage by using their code words against us and confusing people as to the exact type or form of government . Democracour founding fathers crafted in 1787 and voting on and passed in 1789. Democracy is a leftwing word with a strong association with communism. That’s why they are alwys out trying to force it down other nation’s throats: because it’s the same as communism.

  • Sproing

    The problem we face as Americans and as the world’s strongest democracy is our growing failure to uphold and live by the words of the very documents upon which we were founded as a nation. Over the past 75 or so years we have increasingly ignored the Constitutional mandates if they did not fit our current governments wishes or desires about the actions it wanted to undertake at any given time. This has accelerated under the current administration under an inexperienced and unqualified individual who thought , irresponsibly, that the President’s powers were essentially unlimited and that all he needed to do was command that something be down and it would happen. Obama himself admitted as much toward the end of his first year in office. There have been so many actions both nationally and internationally that have been if not illegal at least borderline and open to serious judicial review that we’ve lost count. Yet we think that the world’s leaders should still respect us an follow our lead.

  • J Baustian

    The proper time to declare war on Libya was when the evidence of culpability for the Lockerbie bombing was discovered.

    Possibly though, when another nation attacks one’s citizens and intentionally causes their deaths, a state of war exists; and a declaration of war is only a formal recognition of that state of war.

    Likewise, when representatives of the Islamic Republic of Iran invaded the US embassy in 1979 and took diplomats as hostages, that was also an act of war, and thus a state of war has existed since then between the US and Iran. Iran also attacked our embassy and the Marine barracks in Beirut… additional acts of war.

    Some of these commentators appear to be arguing that a state of war does not exist unless Congress recognizes it. I would argue that we need to be quicker to take offense when we are attacked — and not to wait 20 or 30 years or more before responding.

    • krjohnson

      I would argue that the Lockerbie bombing could have been an act of war at the time, but we did not take it as such. You can’t just go back and say, “woops, now there is a state of war because 30 years ago you did that thing.” You know, we’re not going to attack the British for impressing our soldiers in the 1800s. There is a statute of limitations on this stuff, and while I don’t know how long exactly that statute is, I am pretty sure that it has passed. Hardly any American thinks about the Lockerbie bombing. No American that I can think of feels threatened by the state of Libya.

      Attacking Libyan people does not cause a state of war with the United States. If Kazakhstan invaded Uzbekistan the United States President could not just declare that a state of war already exists and therefore he’s going to intervene. A state of war which would warrant military action without the approval of congress would be if Kazakhstan invaded South Carolina. Or if they attacked our Embassy. Or if they tried to sink one of our ships. You can’t just claim that anywhere in the world where there is a conflict the US President has authority to send troops. There has to be a threat to the US.