Obama’s decision to impose a no-fly zone in Libya has been greeted with criticism from both the left an the right. One point of criticism is that he has acted unconstitutionally. The basis for this claim is, of course, Article I, Section 8 which makes it clear that Congress shall have the power to declare War.
Considering this alone, it would seem that Obama has overstepped the legitimate limits of his power by sending the military into action against a foreign sovereign state. This is, interestingly enough, consistent with what Senator Obama said in 2007: “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. As commander in chief, the president does have a duty to protect and defend the United States. In instances of self-defense, the president would be within his constitutional authority to act before advising Congress or seeking its consent.”
While it is tempting to fall victim to an ad hominem tu quoque here, the fact that a person makes inconsistent claims does not make any particular claim he makes false (although of any pair of inconsistent claims only one can be true – but both can be false). As such, while Obama has made at least one false claim it is not automatically the case that he is wrong now. After all, he could have been wrong in 2007.
Obama can, of course, refer to Article II, Section2 which states that “the President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States…” This could be used to justify his actions. After all, he did not declare war on Libya (nor did they declare war on the United States). He merely sent American forces to impose a no-fly zone. While people have called this an act of war, this is different from making a declaration of war. As such, it could be concluded that Obama has acted within the limits of his legitimate powers.
Interestingly, he also seems to be acting in a way that is perfectly legal, at least in accord with the War Powers Act of 1973. This act was passed, obviously enough, in response to the undeclared war in Vietnam. The gist of the act is that the President can send forces abroad only under two conditions: 1) by the authorization of congress or 2) if the country is under attack or subject to a serious threat. There are, of course, some loopholes that can be exploited. The first is that the president has 48 hours in which to notify congress of such actions and the forces can remain up to 6o days (with 30 more days for withdrawal) before a declaration of war or authorization must be provided by congress. Given that this act is law, Obama seems to have acted in a way that is perfectly legal.
Not surprisingly, this act has been subject to challenges from presidents and there are doubts about is constitutionality. After all, it seems to restrict the president’s role as commander in chief while simultaneously allowing the president to, in effect, wage war for three months without approval from congress or a declaration of war. Both of these concerns do certainly seem to have merit.
A somewhat more philosophical approach to the matter would involve considering the matter of what it means to declare war. One way to look at it is to take it as the formal declaration of war. On this view, Obama would seem to be acting in a legitimate way. As noted above, he has not issued a declaration of war. Rather, he has simply launched attacks within the territory of another sovereign nation-which has become something of a tradition among American presidents.
A second way to look at it is that the act of attacking another sovereign state could be seen as a declaration of war via action. In Locke’s discussion of what creates a state of war, such a state can be created by a statement of intent but also by actions (such as attacking). On this view, Obama’s attack would seem to be an act of war and thus could be taken as a declaration of war. If so, he would be acting unconstitutionally.
A third way to look at the matter is to take the view that congress’s power to declare war is not merely a matter of formally declaring a war, but the power to create a state of war that legitimately allows the military actions of war to be taken. While the President is commander in chief, he does not have the right to create the state of war via his actions. This, of course, does not entail that American forces have to simply take being shot at until congress gets around to declaring war. Nor does it entail that the president cannot order military actions that are short of war. This, of course, raises the rather difficult question of sorting out what counts as a war. That, however, must be the subject of another discussion.
My considered opinion is that Obama has acted legally in that he has acted within the letter of the existing laws. However, on a more philosophical level, I believe (as apparently he did in 2007) that the congress must declare war before the president can legitimately wage a war. As such, Obama has acted in what appears to be a violation of the constitution. However, I am willing to admit that my position is not strongly supported and can no doubt be easily countered by an actual constitutional scholar.
