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.