No

by 'Rick Gray

Created on: March 29, 2011

Reasonable citizens will differ as to whether President Obama would have been wise to have consulted with Congress prior to sending US air and naval forces into action against the Libyan military – but he was clearly under no legal obligation to do so. The argument that the President was required to seek congressional approval under the “war powers” language of Article I, section 8, paragraph 11, betrays a singularly unsophisticated understanding of the Constitution and its evolution over the course of American history.

True, the Constitution requires a congressional declaration of war before the President takes this country – by itself – into a war against one or more foreign powers. This requirement is made clear by the fact that Article I empowers Congress to declare war, while Article II confers no comparable power upon the President.

Though modified and eroded by more than two centuries of actual practice – dating at least to President John Adams' undeclared naval war against France – this congressional authority remains the only legal way in which a President can involve the United States, alone, in a war against another nation.

However, the Constitution sets forth an alternative mechanism by which a President is empowered – indeed, often required – to make the decision to go to war. This occurs when action is called for under the terms of a valid international treaty.

Under Article II of the Constitution, the President “shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur.”

Historically, treaties can, and very often do, involve alliances or other collective arrangements obligating their parties to enter into hostilities on given conditions. Thus, this provision of the Constitution clearly contemplates a decision to go to war based upon an official interpretation of a treaty which might have been in existence for years, decades, or even centuries.

Whose interpretation?

Clearly, the President's. Under our Constitution, the conduct of foreign policy is – with certain limited exceptions – left to the President. Further, under Article VI of the Constitution, “all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land”. Again, the executive branch of government is – by the logic of our tripartite system – charged with carrying out the laws of the land, which necessarily includes deciding when and how those laws apply.

Thus if, in the opinion of the President, the United States is obligated – by the terms of a treaty duly ratified by the Senate – to go to war, he must act, with or without the consent of Congress. In effect, that consultation has already taken place, when the incumbent President, or his predecessor, laid that treaty before the Senate and obtained its ratification.

To argue that the President must consult Congress before carrying out the terms of a treaty makes no more sense than to argue that he must consult Congress before enforcing laws against Federal crimes, for the protection of the environment, for regulating commerce, or for protecting civil rights. Once a law has been enacted, Congress has done its job. It is the President's job to see it carried out.

In the case of Libya, President Obama has based his actions upon the authority of the United Nations, an international organization created by the UN Charter. The UN Charter is, itself, a complex treaty which was ratified by the United States Senate (by a vote of 89 – 2) on July 28, 1945. As a member of the UN, the United States may be legally obligated to join with other nations in carrying out valid resolutions of the UN Security Council or General Assembly.

UN Security Council Resolution 1973 authorizes member states and regional organizations to take action to protect civilians in rebel areas of Libya and to impose a no-fly zone over the entire country. Whether the United States, by reason of its military prowess and position of global leadership, is required to participate actively in carrying out Resolution 1973 is, of course a matter for the President, as the nation's chief executive.

Thus, as a matter of constitutional and international law, President Obama acted within the scope of his office in joining the UN action against Libya. Any “constitutional” argument to the contrary is purely a smokescreen.

Whether Mr. Obama should have consulted Congress prior to acting thus becomes a matter of discretion, rather than obligation. Had the President hoped to obtain sincere input regarding the national interest, he might well have taken this step. However, given the present atmosphere of toxic partisan hostility in Congress – and the outspoken determination of many Republican leaders to defeat him for re-election, by any means necessary – Mr. Obama might reasonably have concluded that any effort to consult Congress would have opened the door to political posturing, rather than sincere advice given in the national interest.

Indeed, given the attitude of many Republican leaders, and their determination to oppose the President at every turn, Mr. Obama might well have welcomed the opportunity to act in the national interest, and within the scope of his authority, in an area in which his congressional opponents have no constitutional authority other than that provided by the First Amendment's freedom of speech.

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