By Mike Dorf
Okay, this is not the promised Part 2 of my series on the military action in Libya. Tomorrow, I'll consolidate what had been planned Parts 2 and 3 into a single post that uses the Libyan intervention as an occasion to discuss the U.N. system for authorizing the use of military force. Here I want to address the question of whether President Obama was required to go to Congress before committing the U.S. to supply the lion's share of the initial dose of air power to enforce U.N. Security Council Resolution 1973. Purporting to comply with the War Powers Resolution, President Obama sent a letter to Congress yesterday explaining the reasons for his actions. Do they satisfy the Constitution? Here I'll address some aspects of that question.
(1) It is unlikely that any court would declare the military action unconstitutional. For one thing, U.S. involvement could be over before any case gets to court. More fundamentally, the question whether a President acted beyond his constitutional authority in authorizing the use of military force could be deemed a non-justiciable political question. To be sure, in The Prize Cases, the Supreme Court did rule on the legality of President Lincoln's use of force to blockade Southern ports. (The Court upheld the blockade on the merits.) The Prize Cases thus could fairly be read to mean that challenges to a president's use of military force are justiciable. However, modern practice appears to belie this conclusion. The Court was repeatedly offered--and repeatedly declined--the opportunity to rule on the constitutionality of the Vietnam War. There is little reason to think that the Justices would treat this (hopefully) much more limited military action differently.
(2) To say that an issue is not justiciable (whether officially or merely de facto) is not to say that there are no constitutional constraints. It just means that the political branches themselves are the audience for the relevant legal arguments. When that happens, the constitutional arguments are typically self-serving--as the near-party-line votes during the Clinton impeachment proceedings illustrated. But even if so, the Constitution channels the arguments to some extent.
(3) On the merits, the President has a weak textual and doctrinal argument. The logic of The Prize Cases is that congressional power to declare war is irrelevant when war is made upon the United States. In those circumstances, the President's duty is to fight back immediately. This view can readily be extended to cover coming to the aid of a foreign sovereign with which the U.S. has a mutual defense treaty, for then an attack on the treaty partner can be understood as the equivalent of an attack on the U.S, and Senate ratification of the treaty can be taken as a form of congressional authorization. But it takes a much larger leap to get to the proposition that the President has authorization to take any military action that the U.N. Security Council has authorized. Security Council authorization is necessary for military action to be lawful under international law (if it does not qualify as individual or collective self-defense under Article 51 of the U.N. Charter). However, the fact that armed force is legal under international law does not automatically mean that the President has the constitutional authority to use such force. Force must be legal under both international law and domestic constitutional law.
(4) In a provocative post on The Volokh Conspiracy, Eric Posner uses the President's actions to illustrate the thesis of his new book, co-authored with Adrian Vermeule, The Executive Unbound: After the Madisonian Republic. Posner and Vermeule argue that the complexities and fluidity of modern life require a vigorous response, which the President but not Congress can supply. They are pointedly non-originalist and one might even say atextualist. Indeed, in his blog post, Posner says that the view with which he disagrees--the view that says Congress can and should play a substantial role in decisions about whether to go to war--"was written into the Constitution." Yet events on the ground have effectively erased that writing, he argues.
(5) I have some sympathy for the Posner/Vermeule methodology, at least in circumstances so extreme that compliance with the text of the Constitution is effectively impossible or, what amounts to the same thing, impossible without courting catastrophe. But I think nothing of the sort is at issue in the case of the Libyan action. The Prize Cases are once again instructive. Speaking for the Court, Justice Grier found that Lincoln could implement the blockade even though Article I commits to Congress, not the President, the power to "suppress insurrections and repel invasions." Why? Because Congress had, in statutes passed in 1795 and 1807, delegated to the President the power to call out the militia and use land and naval forces in the event of invasion or insurrection. Congress could similarly delegate to the President the power to use the U.S. armed forces to enforce U.N. Security Council mandates authorizing armed force. And if Congress were to so act, the President would have all of the speed and agility that neo-Hamiltonians like Posner and Vermeule (and John Yoo) think he needs. But Congress has not made any such delegation.
(6) On the contrary, the War Powers Resolution of 1973 makes clear that Congress regards the Madisonian vision of shared legislative and executive responsibility for the commencement of hostilities as still operative. Since the adoption of the War Powers Resolution, various Presidents have questioned the constitutionality of the procedures it mandates, even as they have usually sought to comply with it. Whatever the strength of the argument that the War Powers Resolution is unconstitutional, at the very least it belies any possible inference that Congress has delegated to the President the power to use military force to enforce every Security Council mandate authorizing force as a matter of international law.
(7) I do not read President Obama's letter to contend otherwise. It cites no congressional delegation of power. Instead, it simply invokes the President's "constitutional authority to conduct foreign relations and as Commander in Chief and Chief Executive." Absent further elaboration, this statement appears to rest on the theory that the President does indeed have the authority to use military force whenever it is both permissible under international law and in what he regards as in the national interest. To my mind, that is a far too sweeping assertion of power. The President was not required to obtain a formal declaration of war from Congress. But he did need some congressional authorization. Thus, I conclude that the President probably has acted unconstitutionally.
(8) What consequences follow from that conclusion are not for me to say. Rep. Dennis Kucinich has said that Obama's actions are "impeachable," although Kucinich does not appear to be calling for Obama's impeachment. For what it's worth, the foregoing analysis applies with roughly equal force to President President Clinton's use of force in Kosovo and President Reagan's invasion of Grenada, both of which were probably more illegal than what Obama has done. Given the Security Council Resolution, at least Obama's actions complied with international law, whereas Clinton and Reagan each probably violated both the Constitution and international law. (In each instance there was a weak argument for legality under international law. An arguable emerging customary international law norm authorizes armed force to stop genocide, while the Reagan administration argued that the potential threat to U.S. medical students justified the invasion as a form of self-defense. If the latter argument were accepted, that might also have made the Grenada invasion valid as a matter of domestic constitutional law.)
(9) By my tally, four of the five Presidents to have served in the last 30 years have gone to war illegally:
(a) Reagan's invasion of Grenada was likely illegal under domestic and international law;
(b) Clinton's use of force in Kosovo was likely illegal under domestic and international law;
(c) G.W. Bush's invasion of Iraq was legal domestically but violated international law;
(d) Obama's use of force in Libya complies with international law but not the Constitution.
On the plus side, G.H.W. Bush complied with both international law and the Constitution in the first Gulf War and G.W. Bush complied with both international law and the Constitution in invading Afghanistan (though not in its treatment of detainees).
These facts are sobering because they show that U.S. Presidents use military force quite often and because they suggest that perhaps Posner and Vermeule are right after all. If the law is what actually happens rather than what is written in the books, then maybe Presidents can pretty much go to war whenever they want, constrained only by politics. I don't think we're quite there yet, but another few war Presidencies and we could be.