Checks and Imbalances

It was inevitable that someone, somewhere in Congress, was going to object to President Barack Obama's military intervention in Libya. "I believe that the president should first seek a congressional debate on a declaration of war under Article I, Section 8 of the Constitution," declared Republican Sen. Richard Lugar. "President Obama's unilateral choice to use U.S. military force in Libya is an affront to our Constitution," echoed Republican Rep. Roscoe Bartlett of Indiana.

One source of opposition, however, is surprising: Barack Obama himself. As a senator in 2007, Obama asserted that "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." This is not new, of course. Presidents have found that the realities of office ultimately force them to go back on their word since strict-constructionist Thomas Jefferson decided to go ahead with the Louisiana Purchase despite the fact that the Constitution granted the federal government no explicit power to acquire land. But when it comes to constitutional authority, which Obama, the candidate or the president, is technically right?

The actual text of the Constitution gives substantial authority over war powers to Congress. Legal scholars such as Yale's Bruce Ackerman and the University of Colorado's Paul Campos have each made a credible case that Obama's unilateral military action subverts or directly violates the Constitution. But from the standpoint of established practice, President Obama's intervention in Libya is hardly an anomaly. For many decades, presidents have used the large military at their disposal to initiate conflict, often without congressional authorization. The explicit power to declare war has not been invoked by Congress since World War II.

The modern rise of unilateral presidential power is the subject a recent provocative book by legal scholars Eric Posner and Adrian Vermuele, The Executive Unbound. In Posner and Vermuele's view, James Madison's constraints on executive power -- the "checks and balances" you're always hearing so much about -- are essentially no longer operative; by and large, it's the president, not a majority of both houses of Congress, that decides to go to war.

Whether or not this is what the framers intended, this is the reality. So the question we need to ask now is how we got so far from the essential structure of the Constitution.

Surprisingly, it's not that the president has systematically ignored or overridden Congress. In fact, the presidency has become the dominant war-making power precisely because this is how a majority of legislators want it. The president initiated major wars in Korea, Vietnam, and Iraq (twice), and in all of these cases -- sometimes before the fact, sometimes after -- Congress has passed the buck, delegating to the president the power to authorize force rather than declaring war itself. Senators and congressmen and women are similarly happy to pass on the blame when things go bad. Hillary Clinton's assertion that her vote for the 2002 authorization for President George W. Bush to use force in Iraq was not an authorization for the preemptive war Bush actually fought is an instructive illustration of how Congress tries to have it both ways.

Even courts have found that Congress has abdicated its power to the executive. In his famous concurrence in Youngstown Sheet and Tube v. Sawyer, a case that involved President Harry Truman's seizure of steel mills during the Korean War, Justice Robert Jackson noted that the Court "may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers." Statutes passed by Congress matter only if Congress asserts its power in showdowns with the president. Generally, it hasn't.

As Posner and Vermuele point out, Congress has occasionally reacted after the fact to presidential abuses of power. The post-Vietnam War Powers Resolution, for example, only authorizes the president to send troops abroad for up to 60 days without congressional approval. But these legislative exercises have been toothless, if not dead letters. Without any enforcement mechanism, the War Powers Resolution and other congressional acts are essentially symbolic. More recently, the reaction to the airstrikes against Libya is quite typical: Individual legislators may grumble, but there's no legislative action.

It's hard to escape the conclusion that the centralization of military power in the executive branch does not hew to the letter of the Constitution. But is that necessarily a bad thing? On some level, arguing that war-making power should rest primarily with Congress, a defensible interpretation of the text of the Constitution, is as anachronistic as libertarians arguing that the 20th-century regulatory state should be ruled unconstitutional. Attempting to entirely overturn established practices of executive military authority is almost as unlikely as overturning the economic regulations that have become necessary since we moved from an agrarian economy to an industrial one.

But it's also true that recent American foreign-policy blunders would suggest it's not entirely desirable for the president to have so much power. As Stephen Holmes argued at length in his brilliant 2006 book, The Matador's Cape, an executive branch unconstrained in its military power is dangerous. "It turns out," Holmes says, "that an executive branch that never has to give reasons for its actions soon stops having plausible reasons for its actions." The Vietnam and second Iraq wars, in particular, suggest that there was real wisdom in the power-sharing over military policy Madison envisioned. Both wars provide classic examples of the pathologies one would expect from unilateral executive power: wars fought under largely false pretenses, with increasingly blurry aims and essentially no cost-benefit analysis. And the theories of unilateral executive power advanced by John Yoo and others in the executive branch under George W. Bush also led to arbitrary torture and other appalling civil-liberties abuses.

The Executive Unbound glosses over it, but there's an important difference between a president acting with passive congressional support (or even congressional acquiescence) and a president acting contrary to congressional statutes. The Bush administration's illegal post-9/11 wiretapping program and recent statements from the Obama administration assert the power to act despite congressional actions that would limit authority. Limits on executive-branch power are difficult to enforce -- other than impeaching the president, how else would one stop him from intervening in Libya contrary to the will of Congress? -- but the proposition that violations of valid federal laws are normatively acceptable is unconscionable. Secretary of State Clinton's suggestion that the Obama administration would continue its attacks on Libya in the face of congressional action to the contrary is highly disturbing, even if congressional quiescence is likely to make the point moot.

Ultimately, the most effective restriction on presidential war-making power is political. Congress still has the formal powers necessary to push back against the expansion of presidential powers. If members of Congress want to create the political conditions that would make it less likely for Libya to become a quagmire, they should, and can, act now.

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