March 22, 2011 1:39 PM

Is Obama's Libya offensive constitutional?

By
Brian Montopoli
Topics
Foreign Policy ,
Congress ,
Obama Administration

One of approximately 110 cruise missiles fired from U.S. and British ships and submarines targeting about 20 radar and anti-aircraft sites along Libya's Mediterranean coast.

(Credit: Jeramy Spivey/U.S. Navy via Getty Images)

Members of Congress have been expressing increasing frustration over President Obama's decision to launch missile strikes against Libya without congressional approval. Liberal Democratic Rep. Dennis Kucinich suggested the action was impeachable; Sen. Jim Webb, another Democrat, complained on MSNBC that Congress has "been sort of on autopilot for almost 10 years now, in terms of presidential authority, in conducting these types of military operations absent the meaningful participation of the Congress."

Some Republicans, meanwhile, are also calling for congressional approval if America is going to war, among them Sen. Richard Lugar. GOP Rep. Walter Jones has complained that Congress has effectively been "neutered."

"I wish the president had not gone into Libya without first coming to Congress," Jones told Politico. "We have for too long, as a Congress, been too passive when it comes to sending our young men and women to war."

Added Republican Rep. Roscoe Bartlett: "The United States does not have a King's army. President Obama's unilateral choice to use U.S. military force in Libya is an affront to our Constitution."

Which raises the question: Is it Congress or the president that has the power to authorize military action?

The answer is that, to some extent, they both claim it. The Constitution, in Article I, Section 8, explicitly states that "The Congress shall have Power To...declare War." But in Article II, Section 2, the Constitution says that "The president shall be Commander-in-Chief of the Army and Navy of the United States." So while only Congress can technically declare war, the president is in charge of the military - and can decide when and where it is deployed.

President Obama speaks from Chile on the Libya offensive.

(Credit: CBS)
Which helps explain why America hasn't actually declared war since World War 2. President Harry Truman didn't go to Congress for a formal declaration of war in Korea, mandating that the U.S. involvement was simply a "police action." That example has been followed in the years since.

In 1973, in response to the Vietnam War, Congress passed the War Powers Act, which mandates that a president obtain congressional approval within 90 days of introducing troops into battle. (It also mandates that they explain the action to Congress within 48 hours.) Yet it too has largely been ignored, in part because it does not provide any recourse if a president violates it. On Monday, Kucinich said he would try to use Congress' power of the purse to stop the U.S. intervention in Libya, saying he would introduce an amendment to defund the action.

Others on the left, meanwhile, are warning that the current situation sets a dangerous precedent.

"To put it crudely: as a matter of logic, if President Obama can bomb Libya without Congressional authorization, then President Palin can bomb Iran without Congressional authorization," wrote Robert Naiman of Just Foreign Policy. "If, God forbid, we ever get to that fork in the road, you can bet your bottom dollar that the advocates of bombing Iran will invoke Congressional silence now as justification for their claims of unilateral presidential authority to bomb anywhere, anytime."

Rep. Dennis Kucinich, D-Ohio

(Credit: AP Photo/Harry Hamburg)
Critics of Mr. Obama's action are using the president's own words against him; in a 2007 interview with the Boston Globe, the then-senator said this about a president's authority to bomb Iran without approval from Congress: "The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation."

"As commander in chief, the president does have a duty to protect and defend the United States," he added. "In instances of self-defense, the president would be within his constitutional authority to act before advising Congress or seeking its consent."

Mr. Obama sent a letter on Monday notifying Congress he had acted in Libya, in conjunction with the War Powers Act's 48 hours requirement. He said he authorized the action as part of a response authorized under the U.N. security council demanding that Libyan leader Moammar Qaddafi change course or face consequences; the goal, he said, is "to prevent a humanitarian catastrophe and address the threat posed to international peace and security by the crisis in Libya."

"I have directed these actions, which are in the national security and foreign policy interests of the United States, pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive," he wrote.

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Add a Comment See all 165 Comments
by acptulsa April 6, 2011 2:14 PM EDT
John R. Hess says that Congress not only authorized the Korean War, but allocated a whopping (for the time) twelve billion dollars for it. Hardly sounds like a lack of Congressional authorization to me. Is CBS saying this is different than a Declaration of War? Please refine your story. Thank you.

Oh, and for those who were wondering, Sen. Mike Lee sponsored the Sense of the Senate resolution objecting to this unconstitutional declaration by the executive, and all of the Democratic senators quoted in this story voted to table that resolution. Just to clarify...
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by moshiem6 March 24, 2011 6:46 PM EDT
i rember when he was a mayor and nearly kill almost of the mistake at the lake .Cleveland oh
Reply to this comment
by noloyalisti March 24, 2011 4:03 PM EDT
In most fascist countries like America, where the giant corporations run all the elections and bought out the government for profit, the military decides what to do and the Constitution has nothing to do with it.

We need a leader for the chaos that will ensue after enough people wake up to this fact. Any ideas? Kucinich?
Reply to this comment
by trimrider March 23, 2011 8:59 PM EDT
Despite offering extensive military help in Libya, U.S. officials admit they are doing little more than watch as chaos erupts in Yemen, a hotbed for Al Qaeda activity. Way to go Obama!
Reply to this comment
by Slyladysheri March 23, 2011 7:03 PM EDT
USA is back:
I am from Singapore and When I was here you and many others made fun of me and called me names and said many awful things to me. I only was asking questions and you act like insane man. I think very much you racist and mean liar person.
Reply to this comment
by trimrider March 23, 2011 7:06 PM EDT
Well I apologize for the way you were treated. Racist never think they are racist. Anyone who reads his post knows he is always telling lies. Apparently he is also delusional so just forget him.
by trimrider March 23, 2011 6:58 PM EDT
So USA__Is-back not only are you a liar and a racist you are totally delusional as well. I guess that explains a lot. I saw someone else the other day that was delusional like you too he called himself slownewsday or something like that only he was not a racist as far as I could tell just really strange and arrogant as hell. You kids hang out at the same day care or something. I mean you are both rally childish and really laughably delusional. This site should be for grown ups but I guess they let kids come in as well.
Reply to this comment
by theaffluentsociety2 April 4, 2011 9:21 PM EDT
well they let kids fight in wars and die. they let kids vote. they let kids get knocked up and face the consequences. they let kids go to schools overrun with poverty and neglect. so yea, i think they should also let kids talk on cbsnews.com
by trimrider March 23, 2011 6:29 PM EDT
Obama himself said he is braking the law and that this is not constitutional: I have posted his own words here many times. So let him fight with himself.

http://www.humanevents.com/article.php?id=42466 Now Vice President Biden wants to impeach him as well.
Reply to this comment
by trimrider March 23, 2011 5:26 PM EDT
by USA__Is-back March 23, 2011 5:13 PM EDT
"Obviously what you just said does not make any sense. If they wanted to profit off the war then why the hell would they block it? "

So they could make money from Hitler, like grandaddy Bush did. You really aren't very educated are you? Read this from Fox!

http://www.foxnews.com/story/0,2933,100474,00.html

Idiot moron you just proved my point. You really need to stop shoeing your total ignorance.
Like I said read some actual real history. Oh and even though I am a Moderate Democrat and a retired Black Col. I still think Obaam is the worst President in history and that people like you are what is wrong with America You do not care about truth just lies.
http://www.reddit.com/r/todayilearned/comments/ftw2q/til_that_prescott_bush_grandfather_of_ghw_bush/
Prescott Bush had nothing to do with the Business Plot. People confuse that particular conspiracy with something different altogether.
He was the on the board of directors of a bank which was part-owned by a German family which had ties to the Nazi Party - - but even this was somewhat unremarkable. Following World War I, Germany had to pay war reparations despite being broke because they just fought the most expensive war of all time - - so Germany looked to American banks for investment purposes. So having wealthy Germans as part-owners of American banks wasn't particularly uncommon at the time. It does not make Prescott Bush a Nazi, a supporter of Nazism, or someone who tried to overthrow FDR. In fact, he was a liberal Republican and would probably be to the left of many contemporary Democrats.
Reply to this comment
by trimrider March 23, 2011 5:11 PM EDT
by pasha128 March 23, 2011 2:20 PM EDT
Review the REAL WWI and WWII history the REPUBLICANS blocked US entry into the war to protect their BUSINESS INTERESTS IN MAKING PROFITS off the war.

Obviously what you just said does not make any sense. If they wanted to profit off the war then why the hell would they block it? Also Benz the largest MFG in Germany was owned by a family that were liberal democrats and spared as they agreed to help Hitler. It was the Chancellor of England that was placating Hitler for years he was a LIBERAL. You can produce no prof of your accusations as they are totally fake and false just Liberal lies to cover up the Liberals attachment to Hitler. Pick up a real history book sometimes. It is good for the brain.
Reply to this comment
by trimrider March 23, 2011 5:04 PM EDT
by pasha128 March 23, 2011 2:23 PM EDT
Most people support the ACTUAL US CONSTITUTION and not the delusions of those in the Tea Party that believe provisions including were REPEALED are still part of the US Constitution they had read at the start of this session at a cost of over $1 MILLION.

I have no Idea why you think a Black retired Army col. moderate democrat is in the tea party but hey as long as you are delusional say hello to Elvis for me and Smokey Robinson and Jimmy Ruffin and Little Richard too.
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