Where were you in 1973?
The Congress of the United States in 1973 was hard at work hammering out the War Powers Resolution, a joint act permitting the president of the Unites States, Richard Nixon at the time, to send the armed forces of United States into action only after obtaining the authorization of the legislative branch of government. An exception was allowed under the resolution if the United States were to come under direct attack or a serious threat of attack.
The War Powers Resolution was an attempt by congress to snatch back from the executive department a presumed constitutional power that had eroded after World War II. During the Korean War, euphemistically called a “conflict,” and the Vietnam War, the United States had marched off to battle without obtaining from congress “a declaration of war.”
Passed by the two-thirds vote in Congress necessary to overcome Mr. Nixon’s veto, the War Powers Resolution required presidents to notify Congress within 48 hours of committing armed forces to military action. The measure also prevented troops from remaining in service in an active military theatre for more than 60 days without an a congressional authorization of the use of military force or a formal declaration of war.
No sooner did the War Powers Resolution emerge from the congressional egg than it came under intense scrutiny by those who claimed, for a variety of reasons, that the resolution was unconstitutioal. The power to make war, some argued persuasively, was not an enumerated power, and the resolution, it was said, failed to make the proper distinction between “declaring” a war and “commencing” a war.
Since its passage in 1973, presidents have drafted reports to congress when appropriate stating that a commitment of troops to a live war theatre is “consistant with” the War Powers Act, thus satisfying the executive department position that the congressional resolution is unconstitutional. Since passage of the resolution, presidents have submitted 118 reports to congress. However constitutionally defective The War Powers Act may be, the congressional instrument has been fairly effective when invoked in requiring the president to keep congress in the loop whenever when troops are sent to various hot spots in the world to do the bidding of, say, the United Nations.
In 2007, Illinois Senator Barack Obama was interviewd by the Boston Globe and asked, “In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress?”
It would not fall within the constitutional authority of the president, Mr. Obama replied, "to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” While the president has a duty to protect and defend the United States as commander in chief, “History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.”
Asked about the constitutional propriety of ordering a strike on Iran’s nuclear capabilities, a situation that involved no direct threat against the United States, Mr. Obama replied, “As for the specific question about bombing suspected nuclear sites, I recently introduced S.J. Res. 23, which states in part that ‘any offensive military action taken by the United States against Iran must be explicitly authorized by Congress.’”
That was then.
Libya presents no direct threat to the United States and, unlike Iran, it voluntarily agreed to give up the possibility of producing nuclear weapons a few years ago. Mr. Obama, who asserted in a congressional resolution HE INTRODUCED four years ago that the president should obtain the authorization of congress when bombing a nation that presents no immediate threat to the United States, has ordered the bombing of Libya after consulting the United Nations rather than the U.S. Congress.
The Libyan intervention has passed muster with Connecticut’s newest senator. Dick Blumenthal, who characterized the intervention as “prudent, decisive action -- with limited scope and duration -- that we are undertaking along with our NATO allies… requested by the Arab League and supported strongly by the UN.”
Mr. Blumenthal, formerly Connecticut’s attorney general, neither mentioned the War Powers Resolution nor gave the slightest indication that it played a part in his approval of Mr. Obama’s intervention. Other members of Connecticut’s congressional delegation, however, have expressed serious reservations. The “first 48 to 72 hours [of sustained bombing] don't look like a supportive role," said U.S. Rep Joe Courtney. Mr. Courtney recommended that the congress, then on a one week recess, be called back into session so that it could be given the opportunity to question top administration officials.
Rep. John Larson registered “deep concern.” The congressman was concerned with a possible ground war and even went so far as to mention the “V” word: “While the president has been very clear that this is not their intention, that wasn't the intention when we sent advisors into Vietnam either.” Having convened a conference to discuss the Libyan intervention, the chairman of the House Democratic Caucus, according to one report, “said there was broad consensus among House Democrats of the need for an official congressional briefing. There was ‘a great deal of skepticism about the time, the mission, the purpose,’ he said.”
The war Powers Resolution, it hardly needs to be said, does not require the president of the United States to seek the approval of the United Nations before committing U.S. troops in a hot war. Because the president committed troops without so much as a wink in the direction of congress, it is doubtful that his “prudent action” is even “consistent with” the War Powers Resolution.