Obama’s “Illegal” War

“The power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature. … the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.”

- James Madison, 1793

A growing chorus is claiming President Obama has violated the Constitution. Professor Bruce Ackerman poignantly wrote “In taking the country into a war with Libya, Barack Obama’s administration is breaking new ground in its construction of an imperial presidency – an executive who increasingly acts independently of Congress at home and abroad.” In ordering the U.S. air strikes on Libya, President Obama consulted the United Nations, NATO, and even the Arab League, but apparently not the United States Congress. In fact, as Professors Ackerman and Hathaway point out, “[h]e ignored repeated calls — by Sens. Hillary Rodham Clinton and Joe Biden, among others — to submit it to Congress for approval.” The Founding Fathers would be surprised, to say the least.

The first time the United States Congress officially declared war was, unsurprisingly, against Britain. But what is more surprising is that it was not during the Revolution, it was much later – at the start of the War of 1812,

General Washington, who served as the model for the President’s Commander in Chief powers, never declared war during the Revolution. Washington was not even named Commander of the U.S. forces until after the outbreak of hostilities with the British in Massachusetts in 1775. In fact, neither Congress nor Washington formally declared war during the Revolution. The closest the United States came was when Congress adopted the Declaration of Independence in 1776, thereby making reconciliation with Britain nearly impossible – and a drawn out war inevitable. But even then, Washington did not sign.

Once he became President, Washington indeed engaged in an undeclared war. Since before the Revolution, the Americans had fought against a confederation of numerous Native American tribes for control of the Northwest Territory. After the Americans emerged triumphant in the Revolution, the seething British incited the Native Americans to renew their attacks. In response, President Washington sent troops to enforce the U.S.’s control over the territory. While he did not have a formal declaration of war, this was a continuing war in which Congress was very involved. Washington’s actions were defending the land claims granted by Congress and the American settlers directly under siege. He was in close communication with Congress, which responded favorably to Washington’s pleas and granted the funds to raise the army he sent. So while this was an undeclared war, it had Congressional approval. And it was not the only one.

Again just a few years later in 1789, President John Adams commanded the U.S. military against France in the Quasi War. While Congress did not declare war, it passed the long-winded “Act Further to Protect the Commerce of the United States.” While it did not roll off the tongue, the Act did the trick – Adams had Congressional authorization.  Again in 1801, President Jefferson did not have a declaration of war from Congress when he attacked Tripoli, as I touched upon last week. However, he did have other Congressional votes to back him. Congress authorized him to seize the ships of Tripoli and “to cause to be done all such other acts of precaution or hostility as the state of war will justify.”

At our nation’s founding, Congress was deeply involved in the initiation of military action. Why were our elected legislatures not more involved today?




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