In defense of President Obama's (eventual) military action in Libya

Since the UN's decision to take action on Libya, a number of liberal, libertarian, and centrist critics have said that American involvement without a declaration of war by Congress violates the Constitution, for only Congress has the power to declare war. The problem with these theories is their assumption that any military action constitutes "war."

The challenge here is that the original semantic meaning of the word "war" is extremely broad: Most founding-era dictionaries define it as the exercise of violence under sovereign command. See, e.g., Johnson's 1768; Sheridan's 1789. That definition is so broad, however (it would encompass police using billy-clubs against protesters), and the founding generation's experience of real war was so recent, that it's tough to imagine that the original understanding of the power to declare war encompassed literally any use of force—or even just any use of military force. Cf. Easterbrook, Text, History and Structure in Statutory Interpretation, 17 Harv. J. L. & Pub. Pol. 61, 67 (1994) (“a dictionary … [is] a museum of words, an historical catalogue”). This supposition is confirmed by the manner in which it was used in the early Republic. When this country declared war on Great Britain in 1812, Congress declared "that war be, and hereby is declared to exist, between the United Kingdom … and the United States…." Quoted in Story's Commentaries, § 1169. What did they mean? It couldn't be that battle was joined at that very moment; "war" clearly meant something both more and less—that is, something distinct—than actual military action. And we know that in fact, the President can use military force—can exercise violence under sovereign command—without Congressional authorization in at least two instances: to repel military invasion of the United States, and when someone else declares war on us. See Prize Cases, 67 U.S. (2 Black) 635, 668 (1862).

Against this we may stack a long line of American military action under Presidential direction without a declaration of war. If it is true that maintaining a no fly zone over Libya (or, for that matter, assisting our allies in doing so, a distinction which may or may not matter) is making war, then President Reagan was a fortiori making war when he invaded Grenada, and a fortissimus President Truman made war in Korea. Come to think of it, I don't remember President Bush 41 seeking a declaration of war for our first action against Iraq or President Clinton seeking a declaration of war for our Kosovo intervention. This history pushes the theory that any use of military force constitutes "war" for Constitutional purposes almost to the breaking point.

Perhaps I'm speaking only for myself in this, but I think that while conservatives are open to tradition being corrected by text, we're instinctively reluctant to assume—and slow to conclude—that they clash. That what might look like tension between the two at face value actually is. (On the other hand, if that's true, why aren't most conservatives also Catholics or Orthodox? But I digress.) Consequently, when I look at these factors—when I see a Constitutional term which isn't as clear as it seems at first blush, and a long tradition of Presidents using the military without Congressional approval—I'm hesitant to say that what looks on the surface like tension between what Obama is doing and what Article I requires is in fact tension. I am not convinced that the Constitution requires Congress to act before the United States can.

I have not yet said anything of the war powers act. 50 U.S.C. § 1541 reads the Constitution broadly to require the "collective judgment of both the Congress and the President" before "the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations." If the Constitution doesn't confine the President, perhaps this does? No. The original meaning of "the executive power," bolstered by the commander-in-chief power, suggests to me that the President has the power to undertake military actions short of the original understanding of "war," and if this is so, the War Powers Act would unconstitutionally abridge that power—a point urged by everyone from scholars to Presidents since the day it passed. The executive power understood by the Framers included all aspects of waging war, see Story, Commentaries, § 1165, and the Framers chose to divide that power by giving the power to declare war to Congress. The implication must be that the remainder of that power remained in the executive.

Moreover, at risk of seeming blasé, I think the practical stakes are particularly low in this case. Congress is actively deliberating the President's budget for this year; if it is displeased by President Obama's actions, it has ample opportunity to make that known by defunding him with unusually immediate effect. Who knows: Maybe this will break the budget logjam, bringing together deficit hawks and anti-war Democrats to shut the government down? As Justice Story remarked, in Britain—where the king was far more free to use military force than is our President, the power of the purse "is found to be abundantly sufficient to protect the nation against any war against the sense of the nation, or any serious abuse of the power in modern times." Id., § 1486.

I doubt that law—the sum of our Constitution, tradition, and statutes—prevents the President from doing what is right in Libya; he should do so forthwith.