I am not a Constitutional law expert. But I've lived through enough cycles of America entering, waging, and recovering from wars to be absolutely sure in saying: the Obama Administration is making a big mistake in so stubbornly refusing to involve Congress in the commitment to war in Libya.
Let's move past the technicalities: that this is not "really" a war, since we have not sent troops into battle and are supporting the air campaign via NATO; that the War Powers act might not exactly fit these circumstances; that many of the Republicans now saying the War Powers act must be observed were against it in other times; and so on.
For purposes of argument, let's grant every one of those points. Let's assume that you could make a courtroom case that Obama has violated neither the Constitution nor the War Powers act in what is now a three-month-old military campaign in a foreign country. (For a strong and detailed contrary argument, see this.)
None of those remove the problem, which is not about technicalities. The central concern, and the major threat to our politics, is that once again we are going to war essentially on one person's say-so. Yes, that person is the Commander in Chief; yes, he is committing force for what he considers to be good and prudent reasons; and yes, there are modern circumstances in which a President must be free to act first and consult later.
But after three months of combat, and after several decades of drift toward unilateral Executive Branch action on matters of war and peace, Obama is doing a disservice to the nation, history, and himself by insisting that the decision should be left strictly to him. If the Libyan campaign ultimately "goes well," he will not in any way lessen his own political and historic credit by having involved the Congress. If it goes poorly, he will be politically safer if this is not just his own judgment-call war. More important, in either case he will have helped the country if his conduct restores rather than further weakens the concept that a multi-branch Constitutional republic must share the responsibility to commit force. We can only imagine the eloquence with which a Candidate Obama would be making this exact case were he not in the White House now.
There are already some eloquent statements of the principle. Six years ago in our magazine, Anne Marie Slaughter (who later became head of Policy Planning under Hillary Clinton at the State Department) and Les Gelb argued that all future wars should be declared wars (emphasis added -- and this was before Libya).
>>Time and again in recent decades the United States has made military commitments after little real debate, with hazy goals and no appetite for the inevitable setbacks.... Too often our leaders have entered wars with unclear and unfixed aims, tossing away American lives, power, and credibility before figuring out what they were doing and what could be done....
Declarations of war may seem to be relics of a bygone era--a time more deeply steeped in ritual, when ambassadors in frock coats delivered sealed communiqués to foreign courts. Yet a declaration of war has a great deal to recommend it today: it forces a deliberate, public conversation about the reasons for going to war, the costs, the risks, the likely gains, the strategies for achieving them--all followed by a formal vote.<<Three months ago, as the fighting began, Garrett Epps made a parallel case:
>>Obama, Congress, and the nation would gain from an authorization debate. The administration has yet to articulate its military aims and its criteria for success. If a congressional debate pushed them to sharpen their rationale for war, that might make it easier to conclude Barbary War III than if--like George W. Bush in Iraq--Obama rushes into battle unclear on whether we are after a ceasefire, a civil war between Libyan forces, or regime change.
After a congressional vote, Libya would no longer be "Obama's War," but a national endeavor. Beyond that, it could actually help heal our hideously broken Congress. Treating the new Congress like a serious legislative body might--just might--impel its members to act like statesmen. And if not--if the body went into filibuster-and-impeachment gridlock--it would permit Obama to argue, correctly, that someone must act in America's interests in an international emergency.<<Obama and his lawyers can persist with their sophistic conceit that they don't "need" to involve the Congress. That may be smart, but it is not wise. Obama the historian and leader must understand that in the broadest political and moral sense he and the country need fuller involvement in decisions on war and peace. Barack Obama has shown flexibility on so many other points, from the structure of his health-care plan to the need for tax cuts. Let's hope he comes to see that this is the wrong place to draw the line.