Constitutional Power To Declare War


Is President Obama breaking the law by engaging in a military conflict in Libya, without first having a formal Declaration of War from Congress? Although the U.S., as a member of NATO, has been using military force in Libya since March 20, 2011, the Congress has not voted to approve or disapprove of the campaign.

The U.S. Constitution clearly gives Congress the power to declare war (Art. I Sec. 8). The President has only the power to act as Commander-in-Chief of the armed forces (Art II, Sec. 2).

Congress last passed a formal Declaration of War in WWII, when the Japanese attacked Pearl Harbor (1941). During the Vietnam War, the issue was hotly debated, because, young men were dying in a far away land, but Congress had not declared war. They instead passed a Gulf of Tonkin Resolution on Aug. 6, 1964, which gave President Johnson authority to use all necessary force.

When President Nixon expanded the war into Cambodia and Senators learned he had conducted a secret bombing campaign, the Congress passed the War Powers Act (1973), to stop the Executive Branch from engaging in unauthorized conflict. Under the law, the President is allowed to engage in military conflict without Congressional authority, only where there is an attack against the U.S., and only for a limited period of 60 days.

With respect to Libya, there was no attack on the U.S. and since the 60 days expired on May 20th, the Commander-in-Chief is violating the War Powers Act and Art I Sec. 8 of the Constitution.

The remedy lies in the Republican-controlled House. They clearly have the power to pass a law saying the President shall not engage in military action in Libya. If the President vetoed it, they could override, with a 66% vote. Since the House also controls all revenue bills (Art I, Sec. 7), and no money can be taken from the Treasury, except by appropriation made by law (Art I, Sec 9), the Congress clearly has the authority to defund the Libyan conflict.

As the North African war continues, and we move closer to the 2012 election, it should be remembered House Republicans tacitly approved of the Libyan fight. If the war goes bad and Republicans complain, they should be asked why they did not end it.

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