[Guest post by Aaron Worthing; if you have tips, please send them here. Or by Twitter @AaronWorthing.]
Update: See the end for the opinion of a Constitutional scholar you might have heard of.
Update (II): Lindsey Graham demonstrates his constitutional ignorance.
I glossed over this earlier today, relying on what my high school teacher and the New York Times said about the War Powers Act. But after looking carefully at the Constitution, and the War Powers Act I can only conclude one thing: this war is illegal.
And let me start by saying that this has nothing to do with whether I support the idea of military action. I do. My chief complaint about this action is that it might be too little, too late. And anyone who followed my twitter would see me say that I believed that we were missing a historic opportunity in our inaction. But it is not enough to do the right thing under our Constitution. We must do the right thing, the right way.
First, it is a war. When our planes are dropping bombs on enemy armies, what else can one call it? Even if it is unlawful, it is still war.
And it is not authorized by The War Powers Act which is codified as 50 U.S.C. § 1541 et seq. Just follow the link and use the “next” link towards the top to browse during the different sections. Section 1541 states that the President can only go to war…
…only pursuant to:
(1) a declaration of war,
(2) specific statutory authorization, or
(3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
Now I am not one of those kinds of constitutional formalists who says that the declaration of war has to be called a “Declaration of War.” The constitution is about substance and not form and therefore the substance of a Declaration of War is to authorize the creation of a state of war between two nations where none previously existed. A simple authorization to use force, for instance, qualifies.
But we don’t even have that. Nor can we say that Gdaffy has attacked the U.S., our territories, or even our military, except for the reason that our military is attacking his country and the statute makes it exceedingly clear that this doesn’t count for self-defense purposes.
So it’s not authorized by the War Power Act. But is it perhaps justified under the Constitution itself?
It would seem not. First, of course, only Congress has the right to declare war. This appears to be the only way our nation can create a state of war between our nation and another, where none previously existed. We were not at war with Gdaffy before we invaded his territory and the state of war that exists is solely because of that invasion. Again, this isn’t to say it is wrong, but it is being done the wrong way. Congress would have every legal and moral right to declare “sic semper tyrannis!” and declare war on Libya. But the President does not have that legal right.
For instance, it is not altogether clear that the President could actually wage war on his own accord if we were invaded. The Constitution states that it is a Congressional power to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions[.]” Arguably, that is exactly what the War Powers Act was all about. But let us say for the sake of argument that by implication coming from provisions like the Take Care Clause and the fact that the constitution differentiates between the Militia, the Army and the Navy, that maybe the president has the implied power to at least deploy the army and navy in self-defense. But nothing in the Constitution could be stretched to allow for a war of choice in a far-off land, where we were not attacked first.
And no, the U.N. resolution doesn’t provide justification, either. The Constitution assigns the power to declare war to Congress and no treaty can abrogate that.
So what do we do? I think we do two things. First, we consider and if appropriate, pass an authorization of force. I wish we would call it a “Declaration of War,” but that is not likely. And then I think Congress should officially Censure Obama, for unlawfully starting a war. I don’t believe impeachment should be on the table, but we should make it clear that if he dares to try this twice, impeachment will follow. The President must be reminded that the decision to go to war is not his, or the United Nations’, but Congress’. To do anything less would risk turning the Declaration of War Clause into a dead letter.
Hat Tip: Dustin.
Update: I forgot to add that the Constitutional-Scholar-in-Chief himself agreed with me, when auditioning for this job:
2. In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress? (Specifically, what about the strategic bombing of suspected nuclear sites — a situation that does not involve stopping an IMMINENT threat?)
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.
As Commander-in-Chief, the President does have a duty to protect and defend the United States. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent. History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.
As for the specific question about bombing suspected nuclear sites, I recently introduced S.J. Res. 23, which states in part that “any offensive military action taken by the United States against Iran must be explicitly authorized by Congress.” The recent NIE tells us that Iran in 2003 halted its effort to design a nuclear weapon. While this does not mean that Iran is no longer a threat to the United States or its allies, it does give us time to conduct aggressive and principled personal diplomacy aimed at preventing Iran from developing nuclear weapons.
Thanks to SPQR for reminding me.
[Posted and authored by Aaron Worthing.]