After weeks of failing to provide even strong rhetorical support for the uprising in Libya — an uprising in pursuit of liberty and against a United States adversary — President Obama has now apparently decided that he has sufficient international authorization to act. This begs two questions: Where is Congress on Libya? And does President Obama think he took an oath to the United States Constitution, or to the United Nations Charter?
Obama said today that the United States has moved “swiftly” on Libya (one would hate to see “not swiftly”) and that the United Nations Security Council has now authorized military action. Obama seems to view such U.N. authorization as both necessary and sufficient. In truth, however, it is neither.
The Americans Founders’ basic (and sensible) division of war powers under the Constitution is that Congress is empowered to decide whether to engage in war, and the President is empowered to decide how to carry out war once it has begun. The Constitution says, “The Congress shall have Power…To declare War,” and this was not intended to be merely a legal formality. Even Alexander Hamilton, the most ardent and forceful advocate of executive power in the founding era, said that Congress “can alone declare war, can alone actually transfer the nation from a state of Peace to a state of War.” An airstrike on Libya wouldn’t (presumably) be the start of an actual war, but it would nevertheless be an act of war.
It is one thing if a situation is pressing and urgent enough that it requires the United States to undertake military action with swiftness and secrecy. In such cases, the President can reasonably claim legitimate constitutional authority to act unilaterally, as his is the office designed for “decision, activity, secrecy, and dispatch” (qualities the Obama administration has hardly displayed in this instance). But if there was sufficient time to seek U.N. authorization, there was also surely sufficiently time to seek congressional authorization, per our Constitution.
Yet Congress has not acted, and President Obama has now gotten authorization from the only body whose sanction he apparently values. The Constitution outlines a different division of powers, one that doesn’t include the U.N.