The Volokh Conspiracy » Does US Military Action Against Qaddafi Require Congressional Authorization?

Several liberal Democratic members of Congress are claiming that President Obama’s decision to use force against Libyan dictator Muammar Qaddafi requires congressional authorization:

A hard-core group of liberal House Democrats is questioning the constitutionality of U.S. missile strikes against Libya, with one lawmaker raising the prospect of impeachment during a Democratic Caucus conference call on Saturday.

Reps. Jerrold Nadler (N.Y.), Donna Edwards (Md.), Mike Capuano (Mass.), Dennis Kucinich (Ohio), Maxine Waters (Calif.), Rob Andrews (N.J.), Sheila Jackson Lee (Texas), Barbara Lee (Calif.) and Del. Eleanor Holmes Norton (D.C.) “all strongly raised objections to the constitutionality of the president’s actions” during that call, said two Democratic lawmakers who took part.

Kucinich, who wanted to bring impeachment articles against both former President George W. Bush and Vice President Dick Cheney over Iraq — only to be blocked by his own leadership — asked why the U.S. missile strikes aren’t impeachable offenses….

Saturday’s conference call was organized by Rep. John Larson (Conn.), chairman of the Democratic Caucus and the fourth-highest ranking party leader. Larson has called for Obama to seek congressional approval before committing the United States to any anti-Qadhafi military operation.

“They consulted the Arab League. They consulted the United Nations. They did not consult the United States Congress,” one Democrat lawmaker said of the White House. “They’re creating wreckage, and they can’t obviate that by saying there are no boots on the ground. … There aren’t boots on the ground; there are Tomahawks in the air.”

Andrew McCarthy, a prominent conservative legal commentator, makes a similar argument here.

This is another of those rare cases where I agree with Dennis Kucinich though I would not go so far as to advocate impeachment, . Unlike Kucinich (and Andrew McCarthy), I tentatively think that Obama has chosen the right policy on Libya. But whether right or not, military action on this scale surely does require congressional authorization under the Constitution.

Article I of the Constitution clearly gives Congress, not the president, the “power… to declare War.” The Founding Fathers sought to avoid a situation where one man had the power to commit the nation to war on his own initiative.

It’s arguable that some small-scale uses of force don’t rise to the level of a war and therefore can be undertaken by the president acting alone under his authority as commander-in-chief of the armed forces. President Reagan’s 1986 airstrike on Libya might be an example, as were Bill Clinton’s 1998 missile strikes against Al Qaeda base camps in Afghanistan. If all the Obama administration intends is to launch a few Tomahawk missiles, perhaps this action would fall in the same category. However, it seems highly likely that the president plans to go well beyond this. Military operations are likely to continue for some time, perhaps until Qaddafi has either been overthrown or at least compelled to leave the rebel-controlled parts of Libya unmolested. If so, it seems quite clear that congressional authorization for military action on that scale is required.

Congressional also might not be needed if all the president is responding to an ongoing or imminent attack. However, Qaddafi has not attacked the US in recent years (though he did sponsor numerous anti-American terrorist attacks in the 1980s and early 90s) and there doesn’t seem to be any evidence that he had any immediate intention of doing so.

As Andrew McCarthy recognizes, congressional authorization need not specifically use the words “declaration of war.” It is enough that it clearly authorize large-scale military action against the enemy in question, as the Authorization for the Use of Military Force against Al Qaeda and the Taliban did in 2001.

For all the hoopla about the supposedly overwhelming growth of presidential power, presidents have in fact gotten advance or nearly simultaneous congressional authorization for almost every major military intervention the United States has undertaken since World War II. This was true in Korea, Vietnam, the two Iraq wars, and many other cases. Bill Clinton’s 1999 military action in Kosovo was the one time during that period when a president entered into a major conflict in the face of actual opposition by the majority in Congress. In part for that reason, Clinton strictly limited the scale of American involvement, avoiding the use of ground forces and ensuring that US troops didn’t suffer any combat casualties. Perhaps Obama plans to do the same thing with Libya; but if so, he will be in a difficult position if more coercion is needed to succeed.

In addition to constitutional reasons, presidents also have strong political incentives to seek congressional support for military action. Without it, the president will have to take the sole political blame if anything goes wrong.

In this case, I have little doubt that Obama could get congressional authorization if he tries to do so. There is considerable Republican support for the Libya intervention, and Obama can also count on the support of most of his fellow Democrats. The Democratic leadership in both the House and the Senate is backing him, despite the opposition of some House liberals.

For both constitutional and political reasons, the administration should seek a congressional vote as soon as possible.

yes… but going into Libya is still stupid. why not go into Bahrain and Saudi Arabia?
because Obama has a better relationship there.

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