War Powers Crisis; Congress Must Place a Check on Executive War-Making

Article excerpt


The United States of America is in a constitutional crisis. Will Congress regain the sole authority to initiate war as specified by the Constitution, or will the executive branch continue to assume that right for itself?

At issue is the war in Libya. The 1973 War Powers Resolution (WPR) gave President Obama 60 days in which to obtain a congressional authorization for his action in Libya. The deadline was May 20. At this writing, the war remains unauthorized. Therefore, it is unconstitutional.

Some reporters and commentators have said that on May 20, the president requested or even urged authorization, but I find no evidence of that. On the final day of the grace period, Mr. Obama sent to the congressional leadership a letter that discussed the hostilities and concluded, I am providing this report as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution. I appreciate the support of the Congress in this action. The letter neither requested an authorization, nor recognized the need for one. It treated the Congress as merely a source of help. This has been typical of recent presidents.

Also on May 20, Mr. Obama reportedly told House Speaker John A. Boehner, Ohio Republican, that he would support a resolution drafted by the Senate. Again, this put Congress in a role of providing assistance. Rep. Dennis J. Kucinich, Ohio Democrat, proposed a resolution on Friday ordering an end to our hostilities in Libya, which the House defeated, 265-148.

In its struggle to retain exclusive authority to make war, Congress is handicapped by a pervasive belief, fostered by the State Department, that the WPR is unconstitutional. In support of that position, the State Department has published lists of events which, it claims, are presidential war-making precedents going back to the early days of the republic. This contention is false. Early presidents knew that the writers of the Constitution strongly opposed giving the war power to any individual person. History from Pericles to Napoleon had shown that individual rulers were liable to start wars for no good reason and then demand support as everybody's patriotic duty.

Our second president, John Adams, not only acknowledged Congress' right to declare war as stated in the Constitution, but assumed that the Congress' authority included undeclared war. In 1798, Adams obtained from Congress an authorization to attack French privateers off the Atlantic coast. Later in the same year, Congress authorized attack on French privateers wherever they might be found. The resulting 1798-1800 undeclared naval conflict historians call the Quasi-War.

Yet in 1966, the State Department listed the Quasi-War as not having been authorized by the legislative branch, according to a memorandum of March 4 sent to the Foreign Relations Committee and published in the Department of State Bulletin of March 28.

In 1801 and 1802, Congress authorized President Thomas Jefferson to attack the Barbary pirates. The alternative was to pay tribute to the pasha of Tripoli.

In 1806, according to the State Department, the U.S. Navy repelled French and Spanish privateers without congressional permission. However, the department's source of information was Dudley Knox's A History of the U.S. Navy, and it says that the privateers actually were ordinary pirates falsely showing the flags of France and Spain.

In 1812, at the request of President James Madison, Congress declared war on Great Britain. Madison was the last president to have attended the Constitutional Convention of 1787. …