The Attack On Libya Renews Debate Over Congressional Consent
By CHARLIE SAVAGE
Published: March 21, 2011
WASHINGTON — President Obama is facing criticism that crosses the political divide for not seeking Congressional authorization before ordering the American military to join in attacks of Libyan air defenses and government forces.
Some Democratic lawmakers — including Representatives Jerrold Nadler of New York, Barbara Lee of California and Michael E. Capuano of Massachusetts — complained in a House Democratic Caucus conference call as the bombing began that Mr. Obama had exceeded his constitutional authority by authorizing the attack without Congressional permission.
That sentiment was echoed by several Republican lawmakers — including Senators Richard G. Lugar of Indiana and Rand Paul of Kentucky and Representative Roscoe G. Bartlett of Maryland — as well as in editorials and columns published over the weekend and on Monday in conservative opinion outlets like the Washington Times editorial page and National Review.
On Monday, Mr. Obama sent Congress a two-page letter saying that as commander in chief, he had constitutional authority to authorize the strikes, which were undertaken with French, British and other allies. He wrote that the strikes would be limited in scope and duration, and that preventing a humanitarian disaster in Libya was in the best interest of American foreign policy and national security goals.
The White House also noted that Mr. Obama had met with Congressional leaders to consult about the Libya situation on Friday. On March 1, the Senate unanimously approved a resolution calling for the United Nations Security Council to impose a no-fly zone over Libya. The Security Council approved such a measure Thursday night.
Critics say the merits of the operation and its legality under international law are matters separate from the domestic legal question of who — the president or Congress — has the authority to decide whether the United States will take part in combat.
“When there is no imminent threat to our country, he cannot launch strikes without authorization from the American people, through our elected representatives in Congress,” wrote Representative Justin Amash, a freshman Republican of Michigan, on his Facebook page. “No United Nations resolution or Congressional act permits the president to circumvent the Constitution.”
Most legal scholars agree that the nation’s founders intended to separate the power to decide to initiate a war from the power to carry it out. But ever since the Korean War, presidents of both parties have ordered military action without Congressional authorization.
The divergence between presidential practice for the past 60 years and the text and history of the Constitution makes it hard to say whether such action is lawful, scholars say. “There’s no more dramatic example of the ‘living Constitution’ than in this area,” said David Golove, a New York University law professor.
Still, as a presidential candidate who promoted his background as an instructor of constitutional law, Mr. Obama appeared to adopt a more limited view of executive power when he answered a question about whether a president could order the bombing of Iranian nuclear sites without a use-of-force authorization from Congress.
“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,” Mr. Obama told The Boston Globe in December 2007.
The administration’s legal team appears to be distinguishing between a full war and a more limited military operation, on the theory that the Libyan intervention falls short of what would prompt any Congressional authority to control decisions about whether to initiate hostilities.Asked about Mr. Obama’s 2007 statement, Tom Donilon, Mr. Obama’s national security adviser, said Monday that the administration “welcomes the support of Congress in whatever form that they want to express that support.” But, Mr. Donilon added, Mr. Obama could authorize the operation on his own.
“This is a limited — in terms of scope, duration and task — operation, which does fall in the president’s authorities,” he said.
In the Globe survey, Vice President Joseph R. Biden Jr., then a senator, argued that a president would have “no authority” under the Constitution to bomb Iranian nuclear sites without Congressional authorization because even limited strikes can unintentionally prompt all-out war.
The question of whether presidents may initiate war has been disputed since 1950, when President Harry S. Truman went to war in Korea without going to Congress. Truman said it was enough that the United Nations Security Council, new at the time, had granted permission. That claim was disputed, but it became a precedent. Subsequent presidents added more such precedents.
President Lyndon B. Johnson cited the Congressional Tonkin Gulf resolution, which expressed support for defending American interests in Southeast Asia, as authorizing the Vietnam War. Lawmakers later repealed it, but President Richard M. Nixon said he could keep the war going.
In 1973, lawmakers enacted the War Powers Resolution, which directed presidents to get Congressional authorization to send troops into hostilities except in an emergency; in that case troops must be withdrawn after 60 or 90 days unless Congress gave retroactive approval.
Still, presidents continued to send the military into action without prior Congressional approval — both with United Nations authorization, as when George Bush intervened in Somalia in 1992, and without it, as when Bill Clinton ordered the bombing in Kosovo in 1999.
Representative Dennis J. Kucinich, Democrat of Ohio, said Monday that even though previous presidents had sidestepped Congress, Mr. Obama’s decision was still a “serious” abuse.
“It needs to be pointed out that what he is doing is outside the Constitution,” Mr. Kucinich said. “If he is relying on precedent, then he ought to say so. But he’s got to square that with his own understanding of the Constitution prior to becoming president.”