Among all the foreign policy decisions President Obama has made, the most surprising may be the one to go to war in Libya without either requesting a declaration of war from Congress, as required by the Constitution, or obtaining legislative authorization, as required by the War Powers Resolution of 1973. Some have suggested that authorization could have been easily obtained at the time the war was launched, when public sentiment against the murderous Qaddafi regime was running high. In that case, the decision not to ask for it seems an especially gratuitous insult to Congress. But if the opposite was true, and Congress at the time had turned down authorization, then the situation is worse. In that case, the war should never have happened at all, for it was started in defiance of the only body of government empowered by the Constitution to initiate war.
Congress's recent actions have done nothing to clarify the situation. The House rejected Dennis Kucinich's resolution to force a withdrawal, but it also defeated one to authorize the war. Then the House turned down a bill that would have cut off some, but not all, funding for the Libya operation.
The still-unresolved debate over the wisdom of engaging in this conflict, which The Nation opposes, raises once again the general question of how, in our time, the United States shall decide whether or not to go to war. Perhaps surprisingly, the tightest restrictions on executive war-making are those in the 233-year-old Constitution. Article 1, Section 8, states, "Congress shall have power to declare war," leaving to the executive only the waging of the war thus initiated. This division of responsibilities was an application of the principle of the separation of powers, which many believe is the specific genius of the American Constitution. As Bennett Ramberg of Politico reminded us recently, James Madison articulated the principle in the clearest terms when he said, "Those who are to conduct a war cannot in the nature of things be proper or safe judges, whether a war ought to be commenced, continued or concluded." Madison's use of the word "judges" is telling. Just as a judge only applies the law and does not make it, he seems to be saying, so a president only fights a war and must not initiate it. If those who fight the wars could send themselves to war, dangerous abuses of power would result.
Curiously, the War Powers Resolution, though an attempt to recoup Congressional power, also waters down the clear constitutional provision. It tries through legislation to recover some of the war-declaring power enshrined in the Constitution. (In cases of attack on the United States or its territories or armed forces, the resolution permits the executive to conduct hostilities for sixty days, after which it must obtain Congressional authorization.)
One might have thought that the Constitution — the fundamental law of the land — would be a stronger bulwark of powers than a mere Congressional resolution. But one would be wrong, in this case. The Constitution is not self-regulating. Ordinarily, constitutional law is decisive because the courts uphold it. But in the case of war powers, the courts have regularly abdicated, calling war a "political question" unsuited for adjudication. Thus, one breakdown in the separation of powers — the separation of executive from judicial that gives the courts the power to judge the constitutionality of executive actions — has led to another: Congress's neglect of its own war power.
Congress has been thrown back on its own devices. What should it do? Some suggest that the nature of war has changed so much in the two centuries since the Constitution was established that the whole idea of declaring war is obsolete. Charles Krauthammer writes that declarations of war are "a relic of a more aristocratic era."
We disagree. The constitutional provision — not the War Powers Resolution — if insisted on by a resolute Congress, would be the strongest and best medicine available for the specific evils afflicting US policy. These can be summed up as the transmogrification of the republic into an empire. If, like Krauthammer, you think that with the end of the cold war "something new was born, something utterly new — a unipolar world dominated by a single superpower unchecked by any rival and with decisive reach in every corner of the globe"; and if, like Krauthammer and the entire neoconservative tribe, you revel in that notion, then you are right to wish to jettison Congress's war-declaring power. The rules of a republic are as poisonous to an empire as the rules of empire are to a republic.
On the other hand, what better check could there be to the imperial panoply of interminable nation-building campaigns, secret armies, covert operations, regime-change quagmires, offshore torture centers, out-of-control armed corporations, runaway military spending, wars by fleets of robots, wars by assassination — and all the other features of the imperial presidency — than a requirement to bring these machinations to light and render them accountable to democratic deliberation? It is not in spite of the changes in warfare but precisely because of them that we should recover the wisdom of Madison, who knew a thing or two about fighting empires. A choice is being made between the empire and the republic. Let us choose the republic — and the Constitution on which it rests.