Dennis Kucinich has objected furiously to President Obama’s decision to order air strikes in Libya. Depending on what source you believe Kucinich regards this order as an impeachable offense or one warrant investigation into same. He’s wrong. But at least he’s consistent. It got to be old hat listening to him screaming about impeaching President Bush and Vice President Cheney. On December 20, 2007 candidate Obama said this about the authority to authorize a military attack:
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
Obama was also wrong. It’ll be interesting to see if he addresses the flop directly by saying he changed his mind (which I’d respect frankly) or if he would argue that the order meets the relevant criteria in his comment or if he will simply demur.
The President is the Commander-in-Chief of all of our military forces. He needs no authorization from Congress to order an attack. However, it is standard protocol and in my opinion a proper thing to do. Few attacks are ordered on such short notice that the leadership of both parties in each house cannot be consulted prior to issuing the order but there is no constitutional requirement for it. While only Congress may declare war, war and attacks are not one and the same. The War Powers Resolution of 1973 attempts to limit this presidential authority. This is a very controversial law that neither side has tested for fear of losing and they have continued on as if the Resolution does not exist. For my part I think it is unlikely that an act of Congress can limit an Article II power.
The history of Presidents using force without Congress declaring war is extensive. This document contains 33 pages of military engagements from 1798 – 2009; eleven of which were pursuant to a declaration of war. On a case by case basis these attacks were supported or opposed by Congress though they overwhelmingly supported them. While it is unlikely that support would be unanimous funding the President’s war budget cannot be regarded as anything other than support (begrudging or not). This legislator/executive relationship has a long history in Anglo-American constitutional jurisprudence. Just by way of example; Parliament tired of funding Charles I’s war efforts and cut him off. Charles found a 400 year old Norman ship tax that permitted a direct levy payable to the Crown. He skirted Parliament but that they had the authority to cut him off and that he did not need their approval for military attacks was not in dispute. The Framers surely were aware of examples like this (and many others) and as our law is an extension of theirs the counter-balance was established the same way here. Congress holds a very powerful check – the power of the purse. They simply need to use it.