Saturday, March 26, 2011


     Over at the Originalism Blog, Mike Ramsey has turned in a couple of excellent posts on the power of the Commander-in-Chief to initiate military action without support of Congress.  The first post is here, the second here.

     The gist of Ramsey’s argument is that while the President retains power to defend the country from attack without Congressional approval, he must seek a declaration of war before attacking another country. The military powers of the Congress and the President make sense if they are understood as a split between the authority to declare whom to fight and the authority to decide how to fight. The President (as Commander-in-Chief) is the one to command the military forces (“how to fight”), but he may exercise this power only after Congress has declared war (“whom to fight”).

     In support of Ramsey’s argument it remains to be said that the Founding Fathers of the United States were thoroughly educated in the classics. In writing the Constitution, they naturally adhered to the examples of the free republics of antiquity, most especially the Roman Republic. Under the Roman Constitution—before Julius Cæsar destroyed it—the Senate declared war, and the Consuls then went forth with the army to conduct operations. Congress is our analog to the Senate, while the Presidency is our analog to the Consulate.

     At present, the War Powers Resolution has finessed the Constitutional question by expressly granting the President power to conduct military operations for sixty days before obtaining Congressional approval. Given that context, the current operation in Libya is within the law.


  1. War is never as crisp and clean as it looks before you get into it. Obama did the right thing by jumping in to save Benghazi and now the devil is in the details. He's trying like heck to keep his hands off the tar baby, which is a good instinct. But another side of me looks at Libya with a weakened but still functional Gadhafi and says, "just shoot the sob and get it over with."


  2. I'd much prefer that the Libyans effect their own regime change, though obviously it will be possible only with our continuing help. Still, part of me agrees with that other side of you...

  3. I'm no lawyer, so I should go over to the Originalism blog, but I don't buy into the argument that presidents must get approval from congress. In this case, we're not actually attacking another country, anyway. I think Obama's action is just as legal as GWB's actions were.

  4. THR, glad you dropped by. On the question of whether presidents need congressional approval, you're in good company. Plenty of people have insisted that presidents don't need congressional approval to wage war. But there are plenty of my view as well, that the decision to go to war is fundamentally for the people--and that means Congress.

    As for BHO and GWB, the latter actually got congressional approval before committing troops. He was fully compliant with the Constitution. Under the War Powers Resolution, BHO still has some time before he needs congressional blessing.

  5. It just occurred to me that we get some temporary advantage from not putting a Congressional stamp on the Libyan situation. Once that is done, regardless of the vote, the shape of our response is more defined, less flexible. Not just whether to get involved, but how to get involved, is locked into place. Also I think many legislators would rather not vote on this until they must and in the meantime there's more room for posturing, pontificating, and dialog in general. Confuse the enemy!