We’ve been conducting military operations against the regime in Libya for over a week now, and still the President has not sought the approval of Congress for this action. Some folks say this is an impeachable offense. Others say it is well within the President’s powers as Commander In Chief.
The Constitution clearly grants solely to Congress the power to declare war, and further grants to Congress the power to regulate the military. But the Constitution also clearly names the President as the Commander in Chief of the armed forces* As usual, the framers of the Constitution attempted to impose a balance of power between the branches of government, recognizing the need for a strong executive, but also hedging against too much concentration of power in the hands of one man.
The United States has been involved in wars, expeditions, quasi-wars and innumerable other military actions throughout its history, but has only actually declared war a handful of times. But in many cases, even when a formal declaration that a state of war exists between the United States and another sovereign nation, the Congress has passed what we now refer to as an Authorization for the Use of Military Force. The most recent example of an AUMF is Iraq. Clearly, in those cases, the actions of the President were in line with the will of Congress. But what about military operations initiated by the President without congressional approval? My reading of the Constitution has always been that the founders clearly wanted to Congress to be responsive to popular will to act as a brake on military adventurism. But the founders also clearly wanted the President to be able to respond promptly to any attacks, and further, that once war was declared, to have the power to efficiently pursue it.
During the Cold War, it was seen as not only possible, but likely that the President would be faced with committing the United States to the deadliest war in history, with only minutes to act. The incredible speed and power of nuclear ballistic missiles meant any attempt to gain approval from Congress while under attack was impossible. And what of 9/11? As the nation was under attack by hijacked airliners, there clearly was no time to seek approval. These are obvious examples where I don’t think any of my readers would claim the President would need to seek approval to act. When the US itself is clearly under attack, I think we all want the President to be able to respond appropriately.
What about US forces in Germany during the Cold War? What if the Soviets starting crossing the border in the massive onslaught that the Army spent 50 years preparing for? Would the President need to go to Congress for approval when Germany is being invaded? Yes, I know that Article 5 of the NATO treaty states that an attack on one member is an attack on all, but who in our government is it that makes the determination that any attack is indeed an Article 5 violation? NATO’s governing body? If so, the US representative to that body is from the executive branch. Can the Congress delegate its power to declare war to a member of the executive branch, or a foreign body? As a practical matter, the inherent right to self defense that every military command holds would dictate that they would begin operations. But does that mean the President can deploy forces in such a manner that invites attack in order to avoid seeking Congressional approval?
When the North Koreans seized the USS Pueblo in international waters, that was clearly a causus belli as understood in international law. But did that give the President sufficient cause to initiate operations against North Korea? Or would he have needed a declaration (of whatever sort) from Congress?
Or how about fighting secessionist states? Lincoln starting fighting the Civil War, and only later sought the blessings of Congress. If Texas suddenly seceded again, would the President be within his rights to invade, or would Congress properly have the power to determine the national response?
This is and always has been a grey area of the Constitution. There are reasonable arguments to be made on both sides, and from my cursory reading of history, the answer seems to be that the President can do whatever he can get away with. There are three primary checks against this broad interpretation of Presidential power. First, popular support. Few Presidents willingly go against overwhelming popular opposition to a policy (wars may become overwhelmingly unpopular, but they rarely start that way). Second, Congress still has to the power of the purse, and can act to defund any operations it truly objects to. And finally, impeachment. If the Congress is sufficiently convinced that the President has overstepped his authority, the Congress can impeach him and remove him from office. This is, of course, the court of last resort.
So what do you think? Where are the limits of Presidential power when initiating war?
*Extra Credit- The President has constitutional power as Commander in Chief over the Army and Navy. What about the Air Force? I presume he has statutory power, but the Constitution is silent on that matter. Is there a body of constitutional law that covers the Air Force?