Tuesday, March 22, 2011

Is the Military Action in Libya Constitutional?

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.


Unknown said...

Well, that was a cogent, sobering analysis. It does point up the consistency of US policy on the use of force in our time and how it is party-agnostic. If de facto boundaries are only set in the political arena one would hope for a more robust public debate.

Glen Salo said...

Has Congress largely abrogated its constitutional role in war with the result that now one individual in the government has the power to initiate military operations, without public debate by the people or their representatives and where our vital interests may not be at stake?

egarber said...

Regardless of whether the president chooses to cite it as justification, I'm still struggling to see how the War Powers Act doesn't authorize his actions during the 90-day statutory window.

Can you elaborate specifically on the WPA? As I understand it, the president can deploy troops in areas where hostilities are actual or imminent for (effectively) 90 days without explicit congressional authorization. Now, Obama may not be planning to seek approval for any extension, but that in itself doesn't make his immediate actions illegal under the law.

None of this means I necessarily support his move -- I'm just looking for clarity on the WPA.

Some are saying that the president can only act in such a way during an emergency situation, where our troops are being attacked.

But that seems wrong to me. The only place "emergency" is mentioned in the WPA text is here (I think):

(c) 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.

I read this to mean that the president can act on his own authority during emergencies via (3), but he *also* can act in different ways through other statutory authorizations (2).

The 60 / 90 day rule seems to fall under (2). And the details of how that part of the law works make no mention of "emergencies" (it's of course possible I'm missing something); they merely merely explain that hostilities must be imminent.

Michael C. Dorf said...


The WPR, 50 U.S.C. sec. 1541(c), states that the President can only use force in three circumstances:
1) pursuant to a declaration of war;
2) with specific statutory authorization; or
3) "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces."

In this context, it makes little sense to read the rest of the WPR--which applies to Presidential uses of force generally--as providing SPECIFIC statutory authorization. Rather, it describes what Congress expects to happen IF the President uses the U.S. armed forces, whether validly or not.

egarber said...

So Mike, does that mean you read the 90-day window language later on as only authorizing mobilization if we're attacked in some way -- i.e., in your cited text, (2) incorporates (3)?


egarber said...

I think I get it now.

You're saying that the 90-day rule isn't itself a grant of statutory authority. It simply lays out what the president must do any time troops are deployed (absent a declaration of war).

Is that it?

Michael C. Dorf said...


Yes, you read me correctly.

michael a. livingston said...

But if all or nearly all Presidents make war illegally, has that for better or worse become the effective new law?

Jonathan Noble said...

The blog seems to say that the War Powers Resolution makes any military action contingent on some kind of congressional approval. Does that mean that there is no longer any "zone of twilight" in matters of war/military action? Either the President is at his highest ebb, or his lowest ebb?

Or, are you suggesting that the recent record of 4 out of 5 presidents disregarding the WPR counts as a historical gloss that establishes Presidental authority in the zone of twilight by "adverse possession?"


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You don't mention President GHW Bush and his invasion of Panama. Was this in your eyes legal also?

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