US action in Libya - Legal or not? War Powers Act of 1973 reviewed

[CaptainHaplo]

Did the President follow the law and Constitution when he authorized US involvement into Libya?

I have seen in another thread that some here hold that the US action in Libya satisfies the War Powers Act of 1973. I will quote the posts in question, but to the posters in question, realize I am not attacking you, merely correcting what is a misunderstanding of the law.



2. President Obama has fulfilled all of the requirements under the War Powers Act of 1973:

http://www.thecre.com/fedlaw/legal22/warpow.htm

sec. 5 (a) only requires the President to report to the speaker (Bohner), which was done last friday, and the president of the Senate (Biden).

sec. 5 (b) then provides that he has 60 days to either cease military action or obtain authorization from Congress.



The War Powers Act of 1973 gives the President the authority to commit military forces as long as he

1. Informs, in writing, the Speaker of the House and the President of the Senate within 48 hours

2. Submits to congress a written report justifying the action. If congress does not take positive action, the military forces must be removed at the end of 60 days. The President can ask for one 30 day extension but he needs to justify that also.

Same rules as for Bush.

These points of view are not "wrong" - however they are incomplete.
Specifically, using the link in the first quote, please note the following sectons:

PURPOSE AND POLICY
SEC. 2. (c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
CONSULTATION
SEC. 3. The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations. Now I ask you, pursuant to Section 2 (c), where was the "national emergency created by attack upon the United States, its territories or possessions, or its armed forces" ? Obviously there was no declaration of war, nor had congress authored any statute giving the Executive the ability to commit troops. That leaves the third option, yet we were not under any threat of imminent attack.

Thus, the committing of troops into combat over Libya without Congressional permission violates the War Powers act of 1973, regardless of any UN mandate.

Discuss reasonably.

[Freiwillige]

I have nothing to add other than this. A politician over stepped his authority, what else is new?:doh:

[Platapus]

The purpose of the war powers act was to fulfill the requirement for "specific statutory authorization".

That section (2) is providing the purpose of the war powers act - that absent of the two other authorizations, the President needs "specific statutory authorization" to commit military forces.

The steps to request "specific statutory authorization" are listed in sections 3 and on.

If the president needed to already have "specific statutory authorization" in place before commuting military action, there would be no need for the War Powers act.

What the War Powers act requires is that if the president wants to commit military forces and there is not declaration of war or there is no direct attack, then the only way the president can commit forces is through "specific statutory authorization" which the War Powers Act prescribes the steps.

Section 2 can be misleading, especially if one is not fluent in Legalese.

[Slyguy3129]

Section 2 can be misleading, especially if one is not fluent in Legalese.

Amen, the way I interpret it, it gives the President power to get something done in an emergency case, rather than waiting for Congress to get off their thumb. But give them 60 days to deliberate it plus an addition 30 if an acceptable argument is made? Or something like that. Honestly I try to make heads or tails of it but some of the terms are a bit over my 5'4 head. Plus I have no legal training, so some of it is greek to me.

[Freiwillige]

I have nothing to add other than this. A politician over stepped his authority, what else is new?:doh:

[CaptainHaplo]

Platapus,

The key phrase in section 2 that your struggling with is "only pursuant to."

Pursuant means following - or coming after - NOT before.

Thus, the Executive may engage troops AFTER a declaration of war, AFTER congressional approval, or AFTER an imminent threat or attack on the US has occured or been recognized.

There is nothing "misleading" about it.

Words mean what they mean.

The War Powers act states HOW the Commander in Chief, as the Chief Executive - is allowed to operate. Lets say Congress votes for war - thats great - but that vote does NOT provide the ORDER to mobilize and commence hostilities - those orders come purely from the executive. Thus, the War Powers act specifies WHEN an executive may commit to combat:

1) AFTER a Declaration of war by congress
2) AFTER a Congressional statute authorizing force
3) AFTER an attack or imminent threat to the US is detected.

The War Powers act does NOT authorize a President to use force in any circumstance other than the above.

Please - review the meaning of PURSUANT
http://www.google.com/dictionary?q=pursuant&langpair=en%7Cen&hl=en&sa=X&ei=wCOOTbuzJIWFtgfrt4SsDQ&ved=0CB8QmwMoAA

[CaptainHaplo]

Amen, the way I interpret it, it gives the President power to get something done in an emergency case, rather than waiting for Congress to get off their thumb. But give them 60 days to deliberate it plus an addition 30 if an acceptable argument is made? Or something like that. Honestly I try to make heads or tails of it but some of the terms are a bit over my 5'4 head. Plus I have no legal training, so some of it is greek to me.


Slyguy - the key here is as you say - an EMERGENCY. IF an emergency happens - then the president is covered. But that emergency must be of the type listed - an attack on the US. That emergency did not happen, thus the violation of the war powers act.

Specifically - it says the President can use the military only on 3 occasions - a declaration of war, a congressional statue authorizing it - or an emergency in which US territory or forces have been attacked or are in "imminent threat" of being attacked. None of these apply.

If it was as you claim - what's to stop the President from deciding that he wants to commit forces to something - for whatever reason - over the objections of Congress and the People. Say invading NK, or China. Sure, wouldn't happen now, but do you want the "can" to be precedent in the future?

[tater]

It seems pretty clear that the current situation is none of the above unless there is any even remotely plausible way to call Libya and "imminent threat." Given that the scope of operations does not include destroying WMD or even terror-related facilities, and the stated goal doesn't include that it seems pretty bizarre.

Also, given the long time period between the beginning of hostilities vs the rebels and the start of US action, why didn't the WH merely ask Congress for approval for participating in a no-fly zone should one be created?

[tater]

Legal types: is the War Powers Act in itself constitutional in the first place?

Seems like there were already limitations—President is Commander in Chief, and Congress gets to "declare" (NOT authorize) war. Seems an intentional separation. A declaration is required only for certain use of force where you might want treaty reciprocity (POW treatment, etc). Other force it's not needed. For a real war, Congress needs to pay for it, or in the old days, pass laws to raise an army in the first place. Given a standing army, it seems reasonable for the President to order them where he will, if Congress has a problem, they can defund the adventure.

The War Powers Act at first blush seems to be at once unnecessary, and over-restrictive (even if the guidelines seem sensible).

[tater]

I googled the WPA, and I think I'll say Obama was within his power as CinC. I think the WPA is BS unless it gets made an Amendment.

In addition, I'll salute him for standing side by side with President Nixon in his disdain for the WPA (which passed despite a Nixon veto). ;)

[VonHesse]

My personal opinion is that I don't have enough information on the technical details and definitions to say for sure if it's legal or not. Also, my personal opinions, whatever they may be, will (and should) have exactly zero effect on whether or not this action is determined to be legal or not. That's what we have lawyers and judges for.

That said, and having just been made aware of the statute cited, I can see only one avenue for the administration to take that would justify the action in Libya within the parameters the law just posted.

It seems to me that the Administration could argue that this is a U.N. mandated mission, and that they are just acting in accordance with their treaty obligations - treaty obligations already voted on by the Congress. I know only Congress has the power to approve international treaties, and it seems plausible that the President could make the argument that the "congressional statute" authorizing the use of force in Libya is, in fact, the same treaty that authorizes our involvement in the U.N., and the Security Council.

Just playing the Devil's (Obama's :O:) advocate here. I guess we'll see what justification he thinks he has when he addresses the nation on Monday.

[CaptainHaplo]

VonHesse - Let me commend you - that is the first time I have heard that arguement raised, and it is one I will have to research. The key is does any congressionally ratified agreement stipulate our actions as being legal within its framework. If so, then the War Powers Act of 1973 would be moot, as it would fall under (2) - authorized statute.

Well done - good to see some here take discussions seriously! :salute:

[Tribesman]

So Von Hesse you are saying its like Korea.
A UN police action where member states simply choose to fulfil their obligations.

[Slyguy3129]

I suppose you could make the argument of the UN mandate but that sounds like the UN has control over our troops, not the President or the Congress.

I suppose ultimately that is what they will use to defend it but as I have yet to actually see this mandate, I don't know if it obligates US forces to do anything. If it doesn't then I would say it is an over step on power. But I will admit ignorance to mostly anything regarding the UN and pretty much ignore that whole "body" seeing as I feel they are incompetent.

To me their history has been to let America do it's dirty work and then complain how we do it.

I get the reason why it is there but damn there has to be a better way, it would probably prevent FUBARs such as this one.

But in the administrations defense (can't believe I am saying that) I do think Ol'e Q needs to go.

[VonHesse]

So Von Hesse you are saying its like Korea.
A UN police action where member states simply choose to fulfil their obligations.

Lol, no silly:O:. I'm trying to determine: "What legal authority does the President have to commit American military forces to offensive combat operations if, in fact, this War Powers Act defines the only acceptable methods of engagement?"

It's not my argument, it's the only possible avenue I can see for the Administration take.:shucks:

[Tribesman]

But they are not offensive combat operations, they are preventative measures against the breaches of the peace;)

[Neptunus Rex]

As the War Powers Act of 1973 was an alteration or amendment of consititutional authority of the POTUS as defined in the Constitution of the United States, passage of a mere "act" by Congress lacks the authority to mandate it. It never was ratified by the States as required in the Constitution.

It was a bulls**t power grab by the Congress.

[VonHesse]

But they are not offensive combat operations, they are preventative measures against the breaches of the peace;)

Ah, but they are offensive operations. You know it, and I know it. I believe even the Pentagon is defining it as a "kinetic military engagement"; weapons striking enemy targets. Also, we (Ireland's in the UN, right?) are the agressors. By any reasonable definition, that makes these offensive military operations. Now, that doesn't mean that the we aren't frantically trying to spin this into a humanitarian or peacekeeping effort, but facts remain facts. But then again, you already knew that, didn't you? :|\\

[Platapus]

Platapus,

The key phrase in section 2 that your struggling with is "only pursuant to."

Pursuant means following - or coming after - NOT before.

Please - review the meaning of PURSUANT
http://www.google.com/dictionary?q=pursuant&langpair=en%7Cen&hl=en&sa=X&ei=wCOOTbuzJIWFtgfrt4SsDQ&ved=0CB8QmwMoAA

Pursuant means "According to a prescribed method or some authority."
http://legal-dictionary.thefreedictionary.com/pursuant

Personally I would not use google for legal definitions. As I posted, legalese can be confusing.

If you really think about it, if the president would need "specific statutory authorization" before following the War Powers Act, there would be no need for the War Powers Act.

The War Powers Act IS the way the president gets the specific statutory authorization to commit military forces. It just gives the congress 60 days to research, write, vote, and publish the "specific statutory authorization".

This is described in Title 50 U.S.C section 1544 paragraph b (1) (or Section 5 if you are reading the act from http://avalon.law.yale.edu/20th_century/warpower.asp.)

"has declared war or [U]has enacted a specific authorization for such use of United States Armed Forces, "

Legal types: is the War Powers Act in itself constitutional in the first place?



Yes, the War Powers Act is constitutional. Article 1 Section 8 of the US Constitution states that congress has the power "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

http://topics.law.cornell.edu/constitution/articlei#section8

The United States Congress passed, and the President signed Title 50 1541-1548

Under the rules of statutory construction, all laws are presumed to be constitutional until it is demonstrated that they are not. So far, no one has been able to demonstrate to the Supreme Court that the War Powers Act is unconstitutional.

[tater]

I don't think the "obligation" argument flies. The UN can vote to allow military action, but I don't think they can compel such action, particularly when any country with an air force can do the work. If the US were ever obligated to do, well, anything by the UN, that's proof we need to simply leave that broken organization.

I'm more inclined to think that the War Powers Act is Congress overstepping its power. The Congressional power WRT longer term uses of force without a war declaration is to close the purse strings.

<EDIT> the last bit was before I read your argument about it being constitutional...

In that case, I don't see any way the current use is legal...

[Armistead]

It's another gray rule so a pres could act without congress.....Just when was the last time congress declared war....?

We've turned into a world police power run by a one man show.

[tater]

Interesting read:

http://www.fas.org/man/crs/RL32267.html#_1_11

[Tribesman]

@ Von Hesse

Ah, but they are offensive operations. You know it, and I know it.
Next you are going to claim that little disagreement in Korea was really a war.

Also, we (Ireland's in the UN, right?) are the agressors.Ireland is as usual right up to its legal limit on foriegn deployments split between 10 main ones and lots of little ones.
As for being the agressors, no that was set out in 1970 and finalised in 1973 when Daffy didn't comply.

By any reasonable definition, that makes these offensive military operations.
Since when have international relations and diplomatic language been covered under "reasonable definition"?

But then again, you already knew that, didn't you?
Me? no, never:up:

[Platapus]

I don't think the "obligation" argument flies. The UN can vote to allow military action, but I don't think they can compel such action...


A very good question!

Under the concept of Sovereignty, no country or extra-national organization, can physically force any country to do anything. So the short answer is that the UN can't physically force any country to do anything. This is why many (not all) complaints about the UN are unjustified.

But let's look at "obligation" from a treaty or legal standpoint, as the UN is, effectively, a treaty structured organization.

The Charter of the UN describes the rules of how the UN operates.

Article 25 states

The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

But that really does not answer your question. Article 25 only means that every member nation needs to accept what the Security Council says. This is one of my major disagreements with the UN by the way. The Security Council is the only body in the United Nations that has, by treaty, the authority to legally compel other nations within the powers and limitations of the charter.

Let’s look at Article 43 (in part)

All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.

This article means that member states need to make portions of their military capability available to the United Nations Military Staff Committee. But….

Article 44 states

When the Security Council has decided to use force it shall, before calling upon a Member not represented on it to provide armed forces in fulfilment of the obligations assumed under Article 43, invite that Member, if the Member so desires, to participate in the decisions of the Security Council concerning the employment of contingents of that Member's armed forces.

This means that any member nation NOT on the security council must be allowed to participate in, and vote on, whether their military will be involved. No nation’s military can be compelled to participate without that member nation’s permission. Which makes sense when you think about it.

So what this boils down to is that when the Security Council votes for military action, they are only obligating the militaries of the member states on the Security Council. If the Security Council wishes to use the military forces of a nation not currently on the Security Council, a special meeting has to be made. Most of the time the Security Council does not want to do this.

So who is on the Security Council?

Well there are the Permanent Members

China
France
Russian Federation
United Kingdom
United States

The non permanent members are

Bosnia and Herzegovina
Brazil
Columbia
Gabon
Germany
India
Lebanon
Nigeria
Portugal
South Africa

So these 15 nations are the only ones immediately required to participate in the military actions over/in Libya.

Now as to why the US is involved….

So, if the US is to follow treaty laws, then yes, by the United State’s actions on the Security Council, the US is obligated to participate. How much participation is that is strictly a US decision. In my opinion, the US seems a little too eager to participate in military actions for my liking. But then a large amount of our economy is in the Military Industrial Complex.

Did this answer your question?


[Platapus]

It's another gray rule so a pres could act without congress.....Just when was the last time congress declared war....?

We've turned into a world police power run by a one man show.

Absolutely right. The President of the United States has the right to "start a war". The President can start attacking any nation he/she chooses. If, with in 60 days Congress decides to stop it, it will be up to the nation we attacked whether there is or is not a war.

Something to think about the next time there is an election. :yep:

[tater]

It did, but in arguing to Congress (had they done so), that ALL the action was requisite under treaty obligations seems absurd. Congress could come back and simply say that in order to meet our obligations, we could simply have provided intel, for example, and no actual forces. Or a single air-tanker.

Functionally they compel nothing. What has the PRC and Russia contributed, exactly? Scorn?

[Platapus]

It did, but in arguing to Congress (had they done so), that ALL the action was requisite under treaty obligations seems absurd.


I would agree. The US seems pretty eager to kill people these days. :nope:

[VonHesse]

@ Tribesman;

Yeah, ya got me :O:. I guess there's some confusion because on the one hand, I'm looking for legal and technical definitions authorizing the use of force, while at the same time, I'm using lay-terminology to define 'offensive', and even 'war'. Again, my definition of 'offensive', was referring to what a reasonable person would define it as. And, yes, I think any reasonable person would call Korea a war, but that might just be the difference between 'reality' and 'legality'. Thanks for reminding me to keep the two views seperate whilst engaging in polite conversation. :salute:


@ Tater & Platapus;

I didn't mean to imply that because of our involvement in the U.N. and the Security Council that we were now "obligated" or required to provide military assets for use in Libya just because a resolution was passed. I just wonder if our involvement allows the President the authority to voluntarily commit forces at his personal discretion.

It seems like it might - the whole "making forces available" line seems to imply that by ratifying the U.N. charter treaty, the US Congress has already given it's approval for any military force used in carrying out Security Council resolutions - and that the "specific congressional statute" required under the WPA could be the same U.N. charter treaty.

I just cant see any other position for the Administration to take if they're going to try to make this action fit within the framework of the War Powers Act.

[Bilge_Rat]

The WPA is on weak constitutional ground, but to see that, you have to look at the Constitutional and historical context.

1. the Constitution

The President is the Commander in Chief of all US forces and can order them in at any time and in any place in the world without any other authorization.

Congress has a general power of oversight since it controls the purse strings and therefore funding of the Armed Forces or of any specific military operation. It also has the power to declare war.

2. the history

President Lincoln fought the entire civil war without a formal declaration of war or express congressional approval. He took the position it was an internal matter and he had all the authority he needed under the Constitution. At the time, no one (well no one in the North :ping:) questioned his authority to act.

President Truman also fought the entire Korean War without a formal declaration of war or express congressional approval. He took the position the UN resolution was all he needed and that it was not a "war" but a "police action". No one questioned his authority either.

You also have to remember the WPA was adopted by a very liberal Congress in 1973, right after Vietnam and during Watergate. It was very much a political message that was being sent to President Nixon.

3. the WPA

Congress can only adopt laws which are within its powers. Congress cannot adopt laws which restrict the powers of the President under the Constitution. Congress can however, adopt laws that regulate how its own powers are exercised.

so, if we interpret the WPA to mean that the President can order troops into action at any time, but that he has to come back to Congress within 60 or 90 days to obtain approval, it is probably valid.

However, if we interpret the WPA to mean that the President is restricted in his use of troops or that he has to obtain prior Congressional approval, then it is unconstitutional and invalid.

4. summary

So back to our case:

The US Constitution grants to President Obama all the power he needs to commit US forces to combat in Libya.

The only real power Congress has is to cut off funding of the operation if it does not approve.

[CaptainHaplo]

Platapus,

Try relooking at the definition your own link provided since it helps to read the whole thing:

"To follow after or follow out; to execute or carry out by reason of something"

Lets plug that into the language, and see what we get.

SEC. 2. (c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are carried out by reason of (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

Perhaps you like this version better?

SEC. 2. (c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only following after (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

Lets go even deeper - since to be entirely accurate we must deal with "pursuant to" which means "according to" - in this case the conditons described.
http://legal-dictionary.thefreedictionary.com/pursuant+to

SEC. 2. (c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only "according to" [the following conditions] 1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.


No matter how you try to parse it, the WPA is clear on under what conditions or circumstances the President is allowed to deploy forces. You can argue that the WPA is unconstitutional if you wish, but the whole PURPOSE of the WPA was to insure that the president did not get the US into a war without causus belli OR the consent of Congress.

Look at the timeframe - 1973. Any idea what was ending then? The US signed the Paris Peace Accords in January of that year, effectively ending the Vietnam conflict. How did we end up in Vietnam? By deployment of force without the consent of Congress and without a specific causus belli (though the 1964 Gulf of Tonkin "incident" was an attempt to provide some). The US was involved in Vietnam as early as 1959 - and US troops hit soil without Congressional approval. Congressional approval was only secured after Tonkin and the Vietnam war only ended because Congress pulled the purse strings. The WPA was a direct result of Presidential actions regading Vietnam, and to a lesser extent, Korea. It's sole purpose was to limit the executive power to commit troops without oversight. There is no other reason for the WPA to even exist.

Now we could debate whether or not that's constitutional (which it is), but thats a different discussion.

Bilge_rat - If the Executive felt the law was unconstitutional, it would have been challenged decades ago. The fact it has never been challenged speaks volumes. In fact, Presidents have either acceded to is (as did Bush) or ignore it completely (as did Clinton).

Finally, a note on Article 2, section 2, clause 1 of the US Constitution:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States

While it could be debated, for the greater part of our history - up until Korea - this was interpreted as the President is in charge once conflict starts. The key phrase is WHEN CALLED - and originally it was set up so that in a federal matter, Congress would AUTHORIZE the use of force at which time the President would run the war. The war powers act of 1973 is merely an attempt to return to that state by defining under what conditions the President may execute hostilities - both with or without congressional approval.

[tater]

There was some talk of revising the WPR to go to the original Senate language which mitigates some of the perceived problems with it.

Looks to me that while I think it is technically unnecessary, it is sort of in line with the way things would have been for the Founders. Back then, a President could do what he wanted with the military except that he didn't HAVE a military (standing armies are, after all, the instrument of tyrants! ;) ). So to use military force, Congress would first have to give him a force to use—regardless of war declaration.

The attack/imminent attack bit is clearly a nod to nuclear weapons (launch on warning).

Strikes me Obama should've asked first.

[Platapus]

Platapus,

Try relooking at the definition your own link provided since it helps to read the whole thing:



If you truly feel that the President acted unconstitutionally, then you need to contact the US Attorney General or your state Attorney General and state your case.

[tater]

If you truly feel that the President acted unconstitutionally, then you need to contact the US Attorney General or your state Attorney General and state your case.

The WPR isn't part of the Constitution, he's saying that the president violated a statutory requirement, not a Constitutional one. I think the only corrective mechanism is Congress, actually (Impeachment). A State AG can't bring charges.

[CaptainHaplo]

Platapus - actually I would be remiss to do so, since at this time I am still looking into whether any treaty or agreement with the UN - ratified by the senate - would give the Executive such authorization.

Never pays to go off half-cocked. Not to mention, I'd have to research quite a bit more as well - to ascertain standing (due to cost burdens borne through taxes, etc.) among other things.

[tater]

Haplo, wouldn't the usual mechanism be Congress trying to protect its power?

[Armistead]

Absolutely right. The President of the United States has the right to "start a war". The President can start attacking any nation he/she chooses. If, with in 60 days Congress decides to stop it, it will be up to the nation we attacked whether there is or is not a war.

Something to think about the next time there is an election. :yep:

That's the problem, every time a Pres starts a way congress almost always jumps on board saying "we're against the war, but must support the troops with what they need." When men start dying and the Pres blames the budget....all politics. I don't know that we've fought an honest war since WW2, except the Afgan, but totally blew that.

[Bilge_Rat]

Capt Haplo,

The fact presidents have not directly challenged the WPA does not mean it is valid, merely that there has been no reason so far to challenge it.

In the Constitution, the phrase "when called" merely refers to state militia. He always commands the standing US forces and can commit them on his own.

The real issue is what is a "war" within the meaning of the Constitution. Not every military action is a War, although President Lincoln and Truman stretched that distinction to the limit. That is why I think the liberal interpretation of the WPA, namely that the President has a free ride for 60-90 days before he has to get Congressional approval is the one which is most in line with the Constitution.

[CaptainHaplo]

Tater - not sure about what your asking...

Bilge_rat - Tater had an excellent point - the Constitution was what created the ability of the federal government to have a standing army and navy. At the time of its adoption, there was no such thing in existence. How could the president commit to combat something that didn't exist at the time?

[Bilge_Rat]

Bilge_rat - Tater had an excellent point - the Constitution was what created the ability of the federal government to have a standing army and navy. At the time of its adoption, there was no such thing in existence. How could the president commit to combat something that didn't exist at the time?

True, but there were many diverging viewpoints that went into the making of the Constitution, from those who wanted a strong executive/federal government to those who wanted a more decentralized union.

In the end, the 1787 Constitution was very closely modeled on the British Constitution with some homegrown element. Article 2(2)1) reflects that compromise:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States

The President is commander in chief of US forces, once established and funded by Congress, which Congress has done over the past 200 years.

The founding fathers could have placed all sorts of restrictions on the powers of the President and created a very weak executive. They did not.

The only restriction on the use of US forces by the President, other than the general power of funding by Congress is the explicit power of Congress to declare war. However, no matter how you interpret it, the power to declare war does not imply that the President can never order US forces into hostile action without the prior approval of Congress. If that is what the writers of the Constitution had meant, they would have used more explicit wording.



p.s. - President Reagan did not get Congressional approval before he ordered the bombing of Libya in 1986.

p.s 2 - Interestingly enough, every president since Richard Nixon has regarded the War Powers Resolution as an unconstitutional encroachment on his Article II executive power, but has nonetheless complied with the reporting requirements.

http://jurist.org/forum/2011/03/the-president-does-not-need-congressional-approval-for-libya-no-fly-zone-yet.php

[tater]

bilge rat, while the President is CinC, my point was at the time the Constitution was ratified, the US didn't have a standing army. In order to engage in hostilities, the President would first need Congress to order an army raised. Ditto the navy. When not in use, it was "mothballed." Making ships ready for sea took a while, and it took money. The President would have to ask Congress to pay for that unless he wanted to spend out of his own pockets.

The simplest military action in the early US required Congress—not as a matter of power, but as the guys with the bank account.

haplo, I was saying that if there is a problem with a president not following the WPR, then the mechanism for correction is likely a congressional one, not the courts. Ie: impeachment. I think the courts are only likely to be involved in the other direction, if a president decides to sue over it being an illegal encroachment on presidential power.

[Bilge_Rat]

Tater, I understood your point, but I would say that had more to do with political considerations at the time.

back to the OP, I just want to make some comments on the 1787 Constitution.

1. Congress



section 8.

The Congress shall have power to...

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;



Congress was required by the Constitution to raise a standing Army and Navy.


The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States;(...)

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, (...)


notice the wording that was used in the framing of executive power. With regards to the power to make treaties, appoint ambassadors, judges, etc., the President's power is made subject to the "advice and consent of the Senate". In UK in 1787, the King could exercise all these powers on his own.

However, in regards to his power as commander in chief of the US Army and Navy, no mention is made of "advice and consent". Again, in UK in 1787, the King was the commander in chief of the Royal Army and Navy. If the framers of the Constitution had wanted to limit the power of the President as commander in chief, the clause could have easily read:

"The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States. He will exercise this power with the advice and consent of the Senate."

That would have meant he could not act without Congressional authority, although I personally think that would have been a disaster waiting to happen..:ping:

[MaddogK]

WPa SEC. 2

PURPOSE AND POLICY
SEC. 2. (c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
CONSULTATION
SEC. 3. The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.
This article allows specific statutory authorization, shown below as 'compulsory participation' by permanent members,


U.N. Article 43
All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security. ...agreed to by congress (treaty/charter), signed by the President.

I guess congress ultimately decides 'how big it is'.
...the force that is.
;)

[CaptainHaplo]

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States.

The President isn't CnC until the armed forces are called into actual service - so then who can call them into service?

Can't be the CnC/President, nor is such power given to Congress...

Hmmm - Any power not specifically given to the Federal Government resides with the States......

Interesting to say the least.

However, thats a purely Constitutional arguement.

@ MaddogK

Read ALL of the Article - Specifically section 3:

Article 43

1. All Members of the United Nations, in order to contribute to the maintenanc­e of internatio­nal peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements­, armed forces, assistance­, and facilities­, including rights of passage, necessary for the purpose of maintainin­g internatio­nal peace and security.
2. Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided.
3. The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratificati­on by the signatory states in accordance with their respective constituti­onal processes.”

Thus Congress must still have ratified the action AFTER a security council resolution. That has not happened.

And for those defending Obama on this - why is it that you don't want to address the fact that he stated:

"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."

http://www.boston.com/news/politics/2008/specials/CandidateQA/ObamaQA/

He is going against his own words on this - but hey, no one wants to address that, do they?