US/ Libya & the War Powers Act

The NATO intervention in Libya has brought on a new episode of an old series: Debate about the War Powers Act and the constitutional authority to make war. The debate is interesting in several regards because it tends to cut across the usual lines of partisan, and even ideological, divides.

The most valuable aspect of the debate is that it demonstrates clearly the limits of constitutional originalism of the kind advocated by Justice Antonin Scalia and others. For most of American history, there was no question about where the authority to make war lay in our polity: Article I, Section 8 of the Constitution states that Congress has the power to declare war and no one else. The founders were very concerned that lodging such an enormous power in a solitary executive officer would grant that individual too much power. And, because the chief magistrate is also the Commander-in-Chief of the Armed Forces, such a concentration of power in his hand might invite tyranny of a kind that has long been a scourge upon humanity, a ruling junta.

The founders may have been perceptive and even prescient about the way power aggregates to those with the power to make war, but they were not prescient about the advent of airplanes or rocket missiles and other technological innovations that changed the nature of warfare. Congress is – or at least it was so conceived – a deliberative body. But, with the advent of modern means of delivering war to our shores, there may not be time to deliberate in the face of a foreign threat. The immediacy of the threat demands immediacy of action and it is inconceivable that any party will challenge the basic right and duty of the president to engage in military action to defend the nation in the face of an immediate threat.

But, during the post-World War II era, Article I, Section 8 took another hit. At the same time as threats to the nation’s security became more immediate, the nature of war became more murky. The Korean War was fought under the auspices of the United Nations and was called a “police action” not a war. Covert operations by our intelligence forces slid into war in Vietnam. The U.S., as a member of NATO, became involved in the Balkans. There was no clear dividing line between war and peace anymore.

The War Powers Act of 1973 sought to address these two changes in the nature of modern warfare and put the decision to engage U.S. military forces on a more sound constitutional footing. It allowed a president to send troops into harm’s way for a limited time, after which congressional authorization must be sought. Today, the administration is looking for ways around that act.