The constitutional question in Washington is whether President Obama is required to get Congressional authorization for America's participation in the European intervention in Libya. As usual, it's the wrong question, in part because it has no clear answer and in part because there's a better question:
Why in heaven's name wouldn't he seek authorization? Doing so would be good for the war effort, good for the nation, and good for Barack Obama.
It's customary at moments like this to hear constitutional literalists proclaiming that any military action requires Congress to "declare war." Rep. Dennis Kucinich, D-Ohio, laid out this line of thought in a statement Friday:
"Congress should be called back into session immediately to decide whether or not to authorize the United States' participation in a military strike. If it does not, the action of the President is contrary to the U.S. Constitution. Article 1, Section 8 of the Constitution clearly states that the United States Congress has the power to declare war. The President does not. That was the Founders' intent."
Many of the same people insist that both Gulf Wars and the war in Afghanistan are also illegal, since they weren't precedent by a certified "Declaration of War." The problem with this argument is two-fold. First, the action in Libya is not an all-out "war" between nation-states. And anyway, the legal term "declare war" is obsolete today -- indeed, as Alexander Hamilton noted in Federalist Number 25, it had begun to wane after the Peace of Paris in 1763. Since the Kellogg-Briand Pact of 1928, nation-states have agreed not to use offensive or aggressive war as "an instrument of national policy" to settle international disputes -- meaning that we don't haul off and "declare war" on another country even if we are really cheesed at them.
The United Nations Charter built on that norm; today, nations derive legal authority to use armed force from the Security Council. That the United States has done. A document called "declaration of war" would be at best supererogatory and at worst silly. That's not to argue (as John Yoo did in 2001) that Congress has no role in authorizing force; it does. But it does mean that "declare war" is not a magic incantation that must be said before the missiles fly.
The second problem is that it's not clear the Constitution invariably requires authorization for use of force before the conflict begins. The level-headed Jack Goldsmith, former head of the Office of Legal Counsel under George W. Bush, lays out the uncertainty about what the dueling clauses (president as "commander in chief" v. Congress as body to "declare war") have come to mean in historical practice. Ever since Jefferson confronted the Barbary Pirates in 1801, when confronted with an emergency military situation, presidents who have taken emergency action asked Congress for authorization after the fact. Congress ratified that procedure by passing the War Powers Resolution of 1973, which implicitly recognizes situations in which the president may introduce U.S. forces into hostilities and then report to Congress within 48 hours.
Obama can claim the legal authority to enforce the UN Security Council Resolution and cut Congress out of the discussion altogether, if he chooses. But the wisest course for Obama would be to report to Congress under the War Powers Resolution and then ask for a formal resolution authorizing continued operation in Libya.
Doing that would be both good constitutional stewardship and good constitutional politics. The two aren't as distinct as they might seem. If the Constitution is primarily a set of rules for carrying on politics in a self-governing republic, it makes sense that acting in the spirit of the document would often be politically wise. The president who most prominently relied on UN authorization was Harry Truman in 1950, who disdained congressional authorization and suffered political collapse when the war went south.
Obama could ask Capitol Hill to put up or shut up. The Republican critique of his actions so far seems to be that (1) he hasn't acted strongly enough, and (3) is reckless for acting at all. A debate on an authorization resolution would require them to pick one and stick with it. Democrats of the Kucinich stripe complain that any new military engagement in the Middle East is a potential quagmire. Debate on an authorization resolution might force them to debate whether the U.S. should allow the pro-democracy rebels in Libya to be exterminated.
The prospect that Congress would disapprove of military action -- ("All members who volunteer for attack ads saying VOTED TO SUPPORT MOAMMAR QADDAFI, don't raise your hands!") -- is practically nil. Obama, Congress, and the nation would gain from an authorization debate. The administration has yet to articulate its military aims and its criteria for success. If a congressional debate pushed them to sharpen their rationale for war, that might make it easier to conclude Barbary War III than if -- like George W. Bush in Iraq -- Obama rushes into battle unclear on whether we are after a cease-fire, a civil war between Libyan forces, or regime change.
After a congressional vote, Libya would no longer be "Obama's War," but a national endeavor. Beyond that, it could actually help heal our hideously broken Congress. Treating the new Congress like a serious legislative body might -- just might -- impel its members to act like statesmen. And if not -- if the body went into filibuster-and-impeachment gridlock -- it would permit Obama to argue, correctly, that someone must act in America's interests in an international emergency.
Over the weekend, House Speaker John Boehner said:
"The United States has a moral obligation to stand with those who seek freedom from oppression and self-government for their people. It's unacceptable and outrageous for [Qaddafi] to attack his own people, and the violence must stop. The president is the commander-in-chief, but the administration has a responsibility to define for the American people, the Congress, and our troops what the mission in Libya is, better explain what America's role is in achieving that mission, and make clear how it will be accomplished. Before any further military commitments are made, the administration must do a better job of communicating to the American people and to Congress about our mission in Libya and how it will be achieved."
For Boehner the statesman, this was the right thing to say. But as a partisan figure, Boehner might prefer Obama to disobey. The Constitution gives the president most of the cards in the game of war and peace. It's hard to understand why Obama wouldn't want to play them.