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Libya – Advice to Congress

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Friday, March 25, 2011 at 5:33 AM

In the last few days several smart people have disagreed with my argument in favor of the constitutionality of the Libya intervention.  This is a perennial debate that arises every time the President threatens or uses force abroad without congressional authorization.  It is a remarkable fact about our 220-year old Constitution that the proper allocation of the war power is not settled in the public mind.

One reason it is not settled is that courts have declined to adjudicate the issue.  From this premise of non-justiciability, Andy McCarthy says:

[A]lthough President Obama’s unilateral commencement of a war against Libya is constitutionally wrong, he clearly has the power to do what he has done, for there are no legal remedies.  This is a political dispute, not a legal one.  Congress, if it is so disposed, will have to flex its competing constitutional muscles to rein the executive branch in.

I disagree with the first part of this.  If what Obama did is unconstitutional, then the dispute is not merely political; it is legal as well, as the Executive branch’s elaborate legal opinions on this topic make plain.  I agree, however, that non-justiciability in this context means that only Congress can enforce its constitutional rights.  Congress has never effectively done this.  It has instead authorized and appropriated for a larger and larger standing army, without conditions on it use, and has effectively recognized in the War Powers Resolution an inherent presidential constitutional authority to use force abroad without congressional authorization for 90 days.

Which brings me to some free advice for Congress. Since the beginning presidents have used force abroad unilaterally, and at least since the Korean War they have justified those uses of force with publicly available legal opinions that constitute the great bulk of official government legal commentary on the allocation of war powers.  These legal justifications have never really been challenged by Congress.  If Congress has a different constitutional vision, it should articulate it.  It should explain its view about the proper constitutional allocation of war powers between the branches, as well as which historical precedents are illegitimate and why.  Such a document, perhaps in the form of an official legal opinion, would be a constitutional counterpoint to the now-voluminous executive branch legal opinions.  It would give greater seriousness to Congress’s constitutional objections and concerns, even if Congress did not embody those concerns in a statute.  And it would cut in to the claim that longstanding presidential practice has shaped constitutional meaning.

Such a congressional legal opinion would be terrific for constitutional discourse on this issue.  But I doubt it will happen.  Congress effectively punted the constitutional issue – at least for the first 90 days of a unilateral presidential use of force – even in the WPR, at the low point of presidential war power.   I doubt it can muster a consensus today on where the constitutional line should be drawn.  And I doubt Congress on the whole even wants the responsibility for articulating such a line.  For such a line would make it harder for individual members of Congress to sit back and react politically opportunistically – as many on both sides of the aisle are doing now – to presidential uses of force.