Tuesday, June 28, 2011

Libya: Crisis? What Constitutional Crisis?

More than ninety days have passed since the United States began kinetic operations in Libya – in accordance with UN Resolution 1973, as part of a pan-national coalition – but Congress has yet to approve the action. On Friday, the House of Representatives defeated a resolution which would have officially authorised operations. The Obama administration, therefore, is currently in violation of the War Powers Act 1973 and, some might argue, the Constitution.

For, Article 1, Section 8 grants Congress the authority “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”, which includes the powers to “declare War”, “raise and support Armies” and “lay and collect Taxes and Duties to provide for the common Defence and general Welfare of the United States”. At the same time, Article 2, Section 2 clearly states that “the President shall be Commander in Chief of the Army and Navy of the United States”.

The War Powers Act, introduced in the wake of Vietnam which was an action absent of a declaration of war, demands that “in any case in which United States Armed Forces are introduced”, the President “shall submit within 48 hours” of the action’s commencement a statement to the House explaining in essence why is it necessary for the country to be involved in a military operation. After sixty days, if Congress has not “declared war or has enacted a specific authorisation” for the mission, “the President shall terminate any use of United States Armed Forces”.

Thus, following the logic of the War Powers Act, and including the extra thirty days granted to the President to allow time for a withdrawal, the mission in Libya should have been curtailed. However, no executive including Nixon has ever recognised the Act’s constitutionality. Not only have successive administrations deemed it inhibitive regarding presidential powers granted by Article 2, Section 2 of the Constitution, but that it was passed by a vote which overrode a presidential veto means that it was a case of the legislature imposing its authority over the executive.

What is apparent all in all is that this part of the Constitution is no longer fit for purpose. The Founding Fathers’ admirable desire to create a system of checks and balances to suit a burgeoning eighteenth-century republic has spawned a constitutional conundrum in the twenty-first. These war clauses are too anachronistic to be merely read literally, given our current system of global jurisprudence.

The Founders could not have conceived of the United Nations, multinational acts of liberal intervention, nation-building, humanitarian relief and so forth. The Constitution reflects more the climate which surrounded the First Barbary War, when under President Jefferson the United States sent her navy to halt pirates in the Mediterranean from plundering her trade vessels. As Charles Krauthammer has argued, “declarations of war are a relic” and “through no fault of anyone, the power to declare war has become archaic and obsolete”.

In the short term, presidential precedent makes it evident that the United States’ involvement in kinetic operations in Libya can continue so long as Congress continues to fund them. As part of an international coalition set up on the basis of a collective humanitarian concern, Libya is similar to NATO’s involvement in preventing further ethnic cleansing in Bosnia-Herzegovina and Kosovo — both of which did not per se receive Congressional approval in accordance with the War Powers Act. In this respect, White House Press Secretary Jay Carney was correct to reinforce the message that this mission “doesn’t meet the threshold of the War Powers Act”.

However, in order to preserve the American experiment and prevent some kind of constitutional crisis down the road, a long-term solution needs to be found which adapts Montesquieu’s separation of powers to the age of swift, legal and necessary intervention. By way of a constitutional Amendment, the Congressional power to declare war needs to be adapted to the twenty-first century as to allow for the legislature to make a one-time approval of any United States military action — leading from behind or otherwise.

Such a measure would achieve three things. First, it would restore Congress to the status the Founding Fathers’ intended, as the body which so-to-speak ‘declares war’. Second, it would ensure that the power of the President to act as commander-in-chief is not hampered by the Congress constantly butting in as to demand they have a hand in dictating the course of war. Third, with this constitutional hole sewn up, discussion would move away from matters of abuse of power or similar to the necessity or righteous of military action.

For the sake of the Libyan people, the United States must continue its role there. For the sake of the American people, the United States must find a way so that, when there’s another Libya or Bosnia or Kosovo, any action can occur with certifiable constitutionality.

(Source: hackeryblog.wordpress.com)

Notes

  1. youngcontrarian posted this