Barbary War III: The Case for Congressional Authorization

Why wouldn't Barack Obama seek Congress's approval to intervene in Libya?  Doing so would be good for the war effort, good for the nation, and good for Obama.

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Obama walks off stage after making a statement about limited military action against Libya. AP/Pablo Martinez Monsivais.

The constitutional question in Washington is whether President Obama is required to get Congressional authorization for America's participation in the European intervention in Libya. As usual, it's the wrong question, in part because it has no clear answer and in part because there's a better question:

Why in heaven's name wouldn't he seek authorization?  Doing so would be good for the war effort, good for the nation, and good for Barack Obama.

It's customary at moments like this to hear constitutional literalists proclaiming that any military action requires Congress to "declare war." Rep. Dennis Kucinich (D-OH) laid out this line of thought in a statement Friday:

Congress should be called back into session immediately to decide whether or not to authorize the United States' participation in a military strike. If it does not, the action of the President is contrary to the U.S. Constitution. Article 1, Section 8 of the Constitution clearly states that the United States Congress has the power to declare war. The President does not. That was the Founders' intent.

Many of the same people insist that both Gulf Wars and the war in Afghanistan are also illegal, since they weren't precedent by a certified "Declaration of War." The problem with this argument is two-fold.  First, the action in Libya is not an all-out "war" between nation-states.  And anyway, the legal term "declare war" is obsolete today--indeed, as Alexander Hamilton noted in Federalist Number 25, it had begun to wane after the Peace of Paris in 1763.  Since the Kellogg-Briand Pact of 1928, nation-states have agreed not to use offensive or aggressive war as "an instrument of national policy" to settle international disputes -- meaning that we don't haul off and "declare war" on another country even if we are really cheesed at them.

After a congressional vote, Libya would no longer be "Obama's War," but a national endeavor. It could actually help heal our hideously broken Congress.

The United Nations Charter built on that norm; today, nations derive legal authority to use armed force from the Security Council. That the United States has done.  A document called "declaration of war" would be at best supererogatory and at worst silly.  That's not to argue (as John Yoo did in 2001) that Congress has no role in authorizing force; it does. But it does mean that "declare war" is not a magic incantation that must be said before the missiles fly.

The second problem is that it's not clear the Constitution invariably requires authorization for use of force before the conflict begins. The level-headed Jack Goldsmith, former head of the Office of Legal Counsel under George W. Bush, lays out the uncertainty about what the dueling clauses (president as "commander in chief" v. Congress as body to "declare war") have come to mean in historical practice. Ever since Jefferson confronted the Barbary Pirates in 1801, when confronted with an emergency military situation, presidents who have taken emergency action asked Congress for authorization after the fact. Congress ratified that procedure by passing the War Powers Resolution of 1973, which implicitly recognizes situations in which the president may introduce U.S. forces into hostilities and then report to Congress within 48 hours.

Obama can claim the legal authority to enforce the UN Security Council Resolution and cut Congress out of the discussion altogether, if he chooses.  But the wisest course for Obama would be to report to Congress under the War Powers Resolution and then ask for a formal resolution authorizing continued operation in Libya. 

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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