War and the Constitution

Over at National Review Online, Andy McCarthy has a good and useful piece on the constitutional questions involved in President Obama’s decision to wage war in Libya without seeking congressional authorization.  His central point: the president has overstepped the bounds of his constitutional powers, but not in a way that can be brought before a court of law.  This may sound strange to those of us (everybody, nowadays) who have been raised on notions of judicial supremacy, but McCarthy is correct.  The Court has, going back to the days of the great Chief Justice Marshall, recognized a category of cases that are “non-justiciable” because they involve “political questions.”  That means that not every violation of the Constitution can be remedied by courts.  Some matters are entrusted to the political branches of the government.  And if the president oversteps the bounds of his powers as commander-in-chief, then it is up to Congress to restrain him.  This can be attempted by legislation or oversight, but the ultimate sanction would be the one already mentioned by people on both the left (Dennis Kucinich) and the right (our own Brad Birzer).

Has Obama so overstepped his powers as to be worthy of being impeached?  Some will say no: he is commander-in-chief and can do what he thinks best (this may be heard from some of the president’s supporters, who will no doubt be uncomfortable making it).  Others will say yes: only Congress has the authority to declare war.  I think the truth is somewhere in between.  The Constitution clearly intends to limit the war-making power of the government, but it does not do so in any clearly legalistic manner.  It does so instead by dividing responsibilities among institutions, the presidency and congress, that are empowered to check each other.

It is hard to say that the president simply acts in violation of the Constitution when he orders military action without congressional approval, or even when he does so in the face of no imminent attack on the nation.  It would be hard to have a blanket prohibition here because it would not be hard to think up circumstances in which military action is needed sooner than congressional approval can be sought and in which important American interests are at stake, even if not the immediate security of the nation.  On the other hand, when the president unilaterally orders military action in a case where no American interests are at stake (and where, by the way, he has not even attempted to articulate the American intersts at stake), then it would certainly be understandable if members of Congress were to conclude that he has stepped over an important line.

So must Obama be impeached?  I don’t know.  But it would certainly be reasonable for members of congress to seek his impeachment.  There is no metaphysical/constitutional correct answer to the question whether the president has so abused the commander-in-chief power as to merit impeachment.  It depends on the extent to which congress wishes to assert its own role.  Just because Congress has acquiesced in presidential war-making in the past is no reason that it must continue to do so.

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8 thoughts on “War and the Constitution

  1. Ronald J. Rolling says:

    Doesn’t this go alone the lines of other conflicts for which Congress never gave Constitutional approval (e.g.–North Korea, North Vietnam, Iraq, Afghanistan)?

  2. Ronald Keith says:

    I feel the president should be impeached for doing this plus he has never produced his birth certificate, I had to produce mine to join the Air Force, so he should have to produce it to be the leader of the country. I feel people are afraid to speak up and get the impeachment process started.

    1. Brian C says:

      Do you believe that he was not born in Hawaii in 1961? If so, then why did two separate Hawaii papers post announcements of his birth the day after he was born? To me, there are only three possible explanations for the existence of these birth announcements:

      1) They accurately describe his birth in Hawaii on the previous day. (which is what I believe)
      2) They were forged after the fact. If this were the case, don’t you think there would be at least one person who opposed or disagreed with him (or wanted fame or $$) that would come forth (because they saved the paper for their child’s birth announcement or for whatever reason) and produce the real newspaper with that date?
      3) His parents, after giving birth to him in Kenya (or wherever), wishing to preserve the opportunity for him to become US president one day, paid two newspapers located thousands of miles away to run announcements of his birth as if it occurred in Hawaii. Keep in mind this is in 1961, before MLK’s I Have a Dream speech, when the possibility of a black man being elected president would seem extremely unlikely, even to those who might support the idea.

      Which of these describes what you think happened? Or, if you have a different scenario, please share.

      1. GREG SMITH says:

        He was actullly born on a flying saucer. His real father is the commander of the Space Invders. They rasied him from birth to become president. Anyone who got in thier was way hypnotized to give, Bor-El, his real name, the advantage. How do you think John McCain was convinced to select Governor Palin as his running mate. It a easy for them to hypnotize the clerks at the newspaper offices to put the announcements in. The Tea Party is a creation of the Space Invaders to set up a straw man for him to knock down in 2012. There’s nothing we can do. Resistance is futile.

  3. Sherman1 says:

    It is odd that the president would ask for permission of the United Nations and not the Congress of the United States. Let’s see now, that’s war on three fronts and W only had two. So much for the peace president.

  4. Greg Smith says:

    Dear Carson – With all due respect, if the new congress, in it’s first foreign policy crisis decides to use it for blatgently partisan purposes, come November 2012 the republicans will lose the majority. Tom Crowe may be right that President Obama could have been more presidential in the way he ordered this, however, he is clearly, legally operating under the War Powers Act. If House Republicans, towing along crazy Dennis Kunich, want to argue that Congresses right to declare war trumps the War Powers Act and the latter is unconstiutional, given the Regan and both Bushs acted under it in larger operions,that but now a democrat whos only launched a few missiles and an air strke or two (Probebly smaller to date than Regan’s raid there) the country will conclude they’ve electe too many small, overly partisan, unsophisticated prople to comngress and correct that error as soon as possible ~~ Best regards, Greg Smith ~~PS: As a Democrat I wouldn’t mind Kunich losing his seat for any reason!

    1. Carson Holloway says:

      Thanks, Greg. I am not passing any judgment on whether it would be politically prudent to initiate impeachment proceedings, only saying that if Congress were to impeach a president over conduct like this it would not be abusing the impeachment power or using it frivolously. As for the War Powers Resolution, while Obama may be complying with its procedural requirements of reporting to Congress and consulting after the fact, he seems to be in violation of it in terms of the substance of his actions in Libya. The Resolution says: “The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised 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.” None of this seems to describe the circumstances of the Libya intervention.

  5. Brad Birzer says:

    Very well argued, Carson. Thank you for this. I will add, however, this. If Congress is ever going to reclaim its constitutional right/duty to declare war or not, now is the time for Congress to take a stand. For all intents and purposes, at least in theory, this should be the most confident House of Representatives in a generation or more.

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