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Libya and Executive Power


Grover Cleveland asks what he asked in our comments, namely what we should make about the lack of congressional involvement in the decision to attack Libya. A few points:

  • Obama’s argument as a senator that his actions as president would violate the Constitution is a perfectly plausible reading of the text, but (as he must have known) not a plausible account of recent practices.   There’s certainly nothing unusual about these actions.
  • The same is true, only more so, about Richard Lugar’s claim that establishing a no-fly zone requires a declaration of war.   In the abstract, it’s perfectly plausible.   As a description of contemporary practice, it’s an anachronism, and indeed going back to Jefferson’s attacks on pirates I don’t think this has ever been an accurate description of practices.   Certainly, given that even Vietnam and the second Iraq war didn’t involve declarations of war, it’s not really tenable to say that one was needed here.   Under current practices, the AUMF George W. Bush obtained prior to the Iraq disaster was constitutionally sufficient, and for short-term smaller-scale conflict congressional approval probably isn’t required.
  • As for why power has migrated so much towards the executive branch, I think Matt gets it right: it’s how a majority of members of Congress generally wants it.   Posner and Vermeule have a good extended argument about this, but essentially attempts to assert more congressional authority (such as the War Powers Act) will work only to the extent that Congress actually asserts its authority, and there’s no indication that it will.
  • As to whether this is a good thing…I’m inclined to agree that it isn’t.   Once you get outside of actual direct threats to American security (as opposed to oblique, longer-term threats to American national interests) the claim that the dispatch and secrecy inherent to the executive branch is suitable for defense decision-making strikes me as highly dubious.    The decision-making under the president’s contemporary war-making powers has been rife with extremely costly false positives, and it’s all-too-likely that Libya will be another one.
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