Edwards and Skaggs: Constitution Requires Congress Vote on War

Posted April 17, 2011 at 11:33am

The conflict in Libya puts America to a test in which our core principles themselves are in conflict.

We despise tyrants and love freedom, so we are drawn to oppose Moammar Gadhafi and find a way to bolster those fighting to depose him. And it was critical to act promptly to do so. Yet, we also cherish our Constitution and the rule of law, which says that only Congress has the authority to decide when we go to war.

It is important to remind ourselves that the framers did not duck this issue, and neither should our Congress. The founders were thoroughly familiar with the propensity of 18th-century chief executives  —  kings  ­—  to engage in wars without needed deliberation. The cost was heavy in terms of lives lost and fortunes squandered. 

The Constitution therefore very clearly places the decision to go to war with the elected Members of Congress, and not with the president. The framers saw this as an essential aspect of the republican form of government they were establishing. It still is.

Proponents of broad presidential authority to take military action rely on the Constitution’s commander in chief clause to claim the president can unilaterally wage war. But the founders wrote that provision to assure civilian supremacy, not to empower the president to go to war.

From 1789 to 1950, all three branches of government understood — without any ambiguity — that the decision to go to war was reserved to Congress. The framers’ intent, constitutional text and the system of checks and balances were respected, and wars were either declared or authorized by lawmakers.

At the time the United Nations was formed, President Harry Truman understood that Congress could not transfer its Article I authority to an international body like the U.N. or to a regional organization like NATO.  He conceded the point to the Senate when it was debating the U.N. Treaty in 1945.

Congress embraced this principle at the time. In approving the U.N. Participation Act of 1945, it explicitly reserved its right to decide about use of American forces, stipulating in section 6 that any presidential decision to engage in a U.N. military operation “shall be subject to approval by Congress.”

Ironically, Truman soon contradicted himself and violated the established pattern of Constitutional conduct when he went to war against North Korea based on a U.N. resolution but without Congressional authority in 1950. 

Since the Korean War, we have had a spotty record of adherence to the requirement of Congressional authorization of war. Sadly, Congress has often been complicit and content to finesse its responsibility to make the tough decision about going to war.

Rather, the point is that neither presidential action nor Congressional inaction can amend the Constitution. The right of the American people remains intact: to have their representatives in Congress decide this question as the founders of the republic prescribed.

President Barack Obama’s reported consultation with Congressional leadership before he authorized the use of military force was a welcome courtesy. However, such consultation provides no Congressional authority.  That authority can come only by passing appropriate legislation through the required processes of democratic government.

In his March 21 letter to Congress and his March 28 speech, the president stated that U.S. military action was “authorized by the United Nations,” but this has no constitutional significance.  International legal authority from the U.N., NATO and the Arab League are important and welcomed, but they do not replace authority under the Constitution.

Finally, the president invoked his “constitutional authority to conduct U.S. foreign relations and as commander in chief and chief executive.” Such boilerplate language has been used regularly in the past, but it makes an empty claim, lacking any Constitutional foundation as the basis for unilateral presidential war-making.

Some argue that there is an implied exception from the requirement of Congressional authority for the use of military force in limited circumstances, such as in cases of humanitarian relief or rescue of citizens, or when the president must act quickly to repel an attack. Those exceptions surely do not apply to the use of military force against Libya.

This use of force was not for defense of the United States, nor primarily for humanitarian purposes. This was an act of war, no matter how one defines “war;” no nice semantic distinctions can avoid that conclusion. No less an authority than Secretary of Defense Robert Gates said so during his testimony before Congress last month, when the “no fly” zone policy was first being considered. We have been at war in Libya without proper constitutional authority.

We face an unfortunate paradox here. The United States is coping with an array of political upheavals in the Middle East and North Africa in which we want and need to be on the side of the rule of law and of progress toward democratic institutions. Yet, in the process of advancing those objectives we have overlooked an important component of the rule of law and democratic participation at home.

As we begin to sort out the implications and consequences — intended and unintended — of our military action in Libya, the nation would still be well-served by the debate that should have happened before the Tomahawk missiles were launched. Congressional leadership should schedule action on a resolution authorizing the United States role in Libya and cause Congress to fulfill, however belatedly, its responsibility under the Constitution.

Mickey Edwards (R-Okla.) and David Skaggs (D-Colo.) are former Members of Congress and are members of the Constitution Project’s War Powers Committee.