Regardless of legality, Omaba has messed up. - Founders intended to separate the power to decide to initiate a war from the power to carry it out.
President Obama is facing criticism that crosses the political divide for not seeking Congressional authorization before ordering the American military to join in attacks of Libyan air defenses and government forces.
On Monday, Mr. Obama sent Congress a two-page letter saying that as commander in chief, he had constitutional authority to authorize the strikes, which were undertaken with French, British and other allies. He wrote that the strikes would be limited in scope and duration, and that preventing a humanitarian disaster in Libya was in the best interest of American foreign policy and national security goals.
The White House also noted that Mr. Obama had met with Congressional leaders to consult about the Libya situation on Friday. On March 1, the Senate unanimously approved a resolution calling for the United Nations Security Council to impose a no-fly zone over Libya. The Security Council approved such a measure Thursday night.
Critics say the merits of the operation and its legality under international law are matters separate from the domestic legal question of who — the president or Congress — has the authority to decide whether the United States will take part in combat.
Most legal scholars agree that the nation’s founders intended to separate the power to decide to initiate a war from the power to carry it out. But ever since the Korean War, presidents of both parties have ordered military action without Congressional authorization.
The divergence between presidential practice for the past 60 years and the text and history of the Constitution makes it hard to say whether such action is lawful, scholars say. “There’s no more dramatic example of the ‘living Constitution’ than in this area,” said David Golove, a New York University law professor.
Still, as a presidential candidate who promoted his background as an instructor of constitutional law, Mr. Obama appeared to adopt a more limited view of executive power when he answered a question about whether a president could order the bombing of Iranian nuclear sites without a use-of-force authorization from Congress.
“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,” Mr. Obama told The Boston Globe in December 2007.
The question of whether presidents may initiate war has been disputed since 1950, when President Harry S. Truman went to war in Korea without going to Congress. Truman said it was enough that the United Nations Security Council, new at the time, had granted permission. That claim was disputed, but it became a precedent. Subsequent presidents added more such precedents.
President Lyndon B. Johnson cited the Congressional Tonkin Gulf resolution, which expressed support for defending American interests in Southeast Asia, as authorizing the Vietnam War. Lawmakers later repealed it, but President Richard M. Nixon said he could keep the war going.
In 1973, lawmakers enacted the War Powers Resolution, which directed presidents to get Congressional authorization to send troops into hostilities except in an emergency; in that case troops must be withdrawn after 60 or 90 days unless Congress gave retroactive approval.
Still, presidents continued to send the military into action without prior Congressional approval — both with United Nations authorization, as when George Bush intervened in Somalia in 1992, and without it, as when Bill Clinton ordered the bombing in Kosovo in 1999.