I don’t agree with his line of argument supporting President Obama’s lack of interest in involving Congress in the Libya war, but I do respect Akhil Reed Amar as a scholar. So I’m linking to this anyway, in the interest of giving a small platform to opposing views.
Amar’s points are, in the main, two. First, presidential war is traditional:
In 1962, President Kennedy used the Navy to quarantine Cuba and prevent nuclear blackmail. In 1983, President Reagan sent troops to Grenada to undo a murderous coup and protect American students on the island. In 1994 President Clinton sent the military into Haiti to restore order and prevent an international refugee crisis. By its general design and actual language, the Constitution empowers presidents to react to fast-breaking events. When bad stuff happens, Congress might not even be in session.
Of course, the fact that something is traditional makes it neither legal nor right. The Founders, drafting the Constitution, did indeed foresee occasions on which the President might need to act unilaterally to defend the country (or even its citizens abroad) from attack. But as I wrote here, that understanding did not extend beyond defense, at least in the understanding of Thomas Jefferson, who during his presidency sought Congressional authorization to fight the Tripolitans (i.e., Libya). Jefferson declared the military “unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.” Or there’s Roger Sherman’s neat summary, from the Constitutional Convention: “The Executive should be able to repel and not to commence war.”
But suppose we allow that at times the line between defense and attack may be blurred, and that the President needs leeway to act. But he has just such leeway under the War Powers Resolution, the law which governs these situations, and which gives the President sixty days to seek Congressional approval (with an additional 30 days to draw down troops, should approval be refused). This is precisely what President Obama has failed to do. Yet here, too, Amar claims that President Obama has acted lawfully.
More than 90 days have elapsed since the Libya mission began, and Congress has not passed a law authorizing the mission or extending the 90-day clock. But the clock starts to tick only when troops have been “introduced into hostilities,” and this statutory phrase is hardly self-defining. True, American planes and drones are dropping bombs. But they are not taking fire. There are no American body bags. American forces are arguably not so much “into” hostilities as “above” them.
The War Powers Resolution itself, in the very subsection setting out the 60-90 day clock, emphasizes “the safety of United States Armed Forces.” Shortly after the resolution was enacted, a key executive-branch document (PDF) defined the “into hostilities” phrase as involving situations “in which there is a serious risk from hostile fire to the safety of United States forces….”
The ambiguities and oddities of the War Powers Act invite a second look at the Constitution, whose basic vision the law purports to implement. Interestingly enough, the Constitution distinguishes between armies and navies, and regulates armies more strictly. (For example, army appropriations must be re-voted every two years; not so for navy appropriations.) This distinction exists because the Framers believed that armies posed a greater threat to American lives and liberty than did navies. Today, the air power is likewise less of a threat to American lives and limbs.
This is a very strange argument to make indeed. The Founders would not have objected, in Amar’s view, to a president conducting an unlimited naval blockade of, say, England, without consulting Congress or the people? Only armies, and not navies, are relevant to the Congress’s role in declaring war? Again, somebody should have told Jefferson, who refused to allow his navy to attack the Tripolitan fleet without Congressional authorization.
What about that “key executive-branch document”? Laying aside the question of why the Office of Legal Counsel, the author of the document, or the Defense and State Departments, which contributed the relevant sentence, should be taken as definitive authorities on legislative intent regarding the WPR, Amar appears to be giving that document a very selective reading. The full paragraph, in a letter from the two Departments to a House committee chairman during deliberations on the War Powers Resolution, attempts to define “hostilities” as
a situation in which units of the U.S. armed forces are actively engaged in exchanges of fire with opposing units of hostile forces, and “imminent hostilities” was considered to mean a situation in which there is a serious risk from hostile fire to the safety of United States forces. In our view, neither term necessarily encompasses irregular or infrequent violence which may occur in a particular area.
Units of our armed forces are clearly engaging opposing units of hostile forces with fire, so I suppose Amar is hanging his argument on the word “exchanges” — if Qaddafi’s forces are armed with rifles and we’re attacking them with bombers, they can’t shoot our planes down, so there’s no real “exchange” of fire, right? This is a very dubious bit of reasoning. I suppose by this logic the President can fire nukes at any non-nuclear power he desires, too.
But it’s clear that even in the view of the Office of Legal Counsel, the firing of shots back and forth in an “exchange” can’t be the defining factor in determining the definition of “hostilities.” E.g., quoting a House report on the drafting of the WPR,
The word hostilities was substituted for the phrase armed conflict during the subcommittee drafting process because it was considered to be somewhat broader in scope. In addition to a situation in which fighting actually has begun, hostilities also encompasses a state of confrontation in which no shots have been fired but where there is a clear and present danger of armed conflict. “Imminent hostilities” denotes a situation in which there is a clear potential either for such a state of confrontation or for actual armed conflict.
In other words, Amar’s “exchanges of fire” threshold is not the definitive test; mere “confrontation” is enough — and no one would deny that we are engaged in a “confrontation” with Qaddafi’s forces. And “armed conflict” is certainly one way to describe a sustained bombing campaign.
Finally, Amar’s read on the legislative intent behind the word “hostilities” is particularly peculiar in light of the historical context in which the WPR was passed, since the law was crafted specifically in response to the carpet bombing of Cambodia, which, like the Libya campaign, did not involve a ground fight. If bombing Cambodia without the support of Congress or the American people was so beyond acceptability that Congress felt it necessary to re-assert its Constitutional role in declaring war by passing the War Powers Resolution, why is it acceptable for President Obama to bomb Libya for months on end without getting the approval of the people’s representatives?