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Congress Surrenders the War Powers: Libya, the United Nations, and the Constitution, Cato Policy Analysis No. 687

Congress Surrenders the War Powers: Libya, the United Nations, and the Constitution, Cato Policy Analysis No. 687

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Since the Cold War the United States has fought three major wars. Congress authorized each of these wars. The president has also initiated several limited wars. These limited wars have not been explicitly approved by Congress as required by Article I of the Constitution. A review of the history of making limited wars suggests several conclusions. First, the president has assumed a de facto power to begin and pursue a limited war, understood as a struggle where no American combat deaths are expected. Second, Congress has at times been highly critical of such wars but also highly deferential to the president in cases where the wars were brief and popular. Third, an active and critical Congress can shape the president's choices and decisions about such wars. Fourth, the public is often skeptical about limited wars and strongly supports congressional approval of such undertakings. Finally, until recently, presumed presidential authority under the Constitution was more important than the approval of international institutions in legitimating limited wars. In Libya the approval of the United Nations Security Council and other international institutions was essential to legitimating the war according the Obama administration. This incremental transfer of the war powers to international institutions contravenes the republican nature of the United States Constitution.
Since the Cold War the United States has fought three major wars. Congress authorized each of these wars. The president has also initiated several limited wars. These limited wars have not been explicitly approved by Congress as required by Article I of the Constitution. A review of the history of making limited wars suggests several conclusions. First, the president has assumed a de facto power to begin and pursue a limited war, understood as a struggle where no American combat deaths are expected. Second, Congress has at times been highly critical of such wars but also highly deferential to the president in cases where the wars were brief and popular. Third, an active and critical Congress can shape the president's choices and decisions about such wars. Fourth, the public is often skeptical about limited wars and strongly supports congressional approval of such undertakings. Finally, until recently, presumed presidential authority under the Constitution was more important than the approval of international institutions in legitimating limited wars. In Libya the approval of the United Nations Security Council and other international institutions was essential to legitimating the war according the Obama administration. This incremental transfer of the war powers to international institutions contravenes the republican nature of the United States Constitution.

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Published by: Cato Institute on Oct 26, 2011
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Executive Summary 
Since the Cold War the United States hasfought three major wars. Congress authorizedeach of these wars. The president has also ini-tiated several limited wars. These limited warshave not been explicitly approved by Congressas required by Article I of the Constitution. Areview of the history of making limited warssuggests several conclusions. First, the presi-dent has assumed a de facto power to begin andpursue a limited war, understood as a strugglewhere no American combat deaths are expect-ed. Second, Congress has at times been highly critical of such wars but also highly deferentialto the president in cases where the wars werebrief and popular. Third, an active and criticalCongress can shape the president’s choices anddecisions about such wars. Fourth, the public isoften skeptical about limited wars and strongly supports congressional approval of such un-dertakings. Finally, until recently, presumedpresidential authority under the Constitutionwas more important than the approval of in-ternational institutions in legitimating limitedwars. In Libya the approval of the United Na-tions Security Council and other internationalinstitutions was essential to legitimating thewar according the Obama administration. Thisincremental transfer of the war powers to inter-national institutions contravenes the republi-can nature of the United States Constitution.
Congress Surrenders the War Powers
 Libya, the United Nations, and the Constitution
by John Samples
No. 687October 27, 2011
 John Samples is director of the Center for Representative Government at the Cato Institute. He is the author of 
The Struggle to Limit Government
(2010) and
The Fallacy of Campaign Finance Reform
(2006).
 
2
Practicecannot trumpfundamental law in a constitutionaldemocracy.
Introduction
The United States Constitution vests thepower to “declare war” in Congress, leavingto the executive the power to “repel suddenattacks.”
1
By the middle of the last century,the nation had drifted far from the originalunderstanding. President Truman waged theKorean War absent congressional authoriza-tion, and President Johnson prosecuted the Vietnam War with minimal congressionalauthority.
2
Presidents also used force abroadon multiple occasions without congressionalapproval. This growth of executive power,along with failure in Vietnam, led Congressto enact the War Powers Act over the veto of President Nixon.The post–Cold War era has been differentand more complex. Presidents have continuedto claim a largely unfettered power to initiateand to make war as they see fit. But their prac-tice of war has been different. Presidents havesought (and received) congressional supportfor the three wars similar to Korea and Viet-nam. The Persian Gulf,
3
Afghanistan,
4
andIraq
5
wars all involved (and were expected toinvolve) troops in combat and thus, casualties.Both wars involving Iraq followed nationaldebates that ended with congressional state-ments of support or authorization for thewar. The authorization for war in Afghanistancame quickly, with little debate, as might be ex-pected in the immediate aftermath of the Sep-tember 11 attacks. The Bush administrationcampaigned for several months to gain con-gressional assent to the 2003 invasion of Iraq.Since the end of the Cold War, presidentshave initiated smaller wars in Bosnia, Somalia,Kosovo, and most recently, Libya. The Clintonadministration also expected to make war inHaiti but found that the threat of force suf-ficed to change that regime. Clinton also usedforce several times against Iraq. Congress didnot constitutionally approve any of these ac-tions ex ante although one chamber or anoth-er did offer support in some cases. In four of five of these cases, the Office of Legal Counsel(OLC) in the Justice Department advised thepresident that the practice of war-making by his predecessors justified acting absent con-gressional approval.The OLC notwithstanding, practice can-not trump fundamental law in a constitu-tional democracy. “We the People” establish a Constitution to empower government and toconstrain its practice.
6
In this way, a constitu-tional democracy strives to live under the ruleof law. The rule of politics, in contrast, definesthe Constitution through what politiciansdo.
7
Law becomes over time a function of, nota constraint on, the practice of politics.Practice cannot trump constitutionaltext, but it still may merit study. Though law should dominate practice, it might be the casethat government officials believe that practiceinforms and reveals the law. The study of thepractice of war-making, for example, mightindicate how the law might develop, constitu-tional propriety notwithstanding. A study of the practice of war-making might be under-taken to advise policymakers to intervene in a path of development to retain or restore con-stitutional propriety. The study of the prac-tice of war-making might affirm rather thannegate constitutional law.In the United States, starting and fight-ing a war may be done in four ways:1. Congress authorizes a war which is theninitiated and made by the executive (aswe have seen, this is the “constitutional-ist” position).2. The executive initiates and makes a warat his discretion (the “presidentialist” po-sition).3. The United Nations Security Council(or other relevant international body)authorizes a war which is then initiatedand made by the executive (“weak inter-nationalism”).4. The United Nations Security Council(or other international body) authoriz-es a war which is then obligatory for theexecutive to initiate and make (“stronginternationalism”).
8
This policy analysis examines the prac-tice of limited wars in the post–Cold War
 
3
Congress canlimit presidentialdiscretion beyondits formal legalpowers.
era. During the Cold War such limited warscould be justified as a response to Soviet ag-gression. After the Soviet threat dissolved,such wars required a new justification andperhaps a different kind of practice. Here Idefine “practice” more broadly than doesthe OLC. The latter concentrates on theactions of presidents and legal replies by Congress in limited wars. That concentra-tion ignores ways Congress can limit presi-dential discretion beyond its formal legalpowers. Moreover, the OLC briefs overlookthe role of public opinion in the practice of war-making. Given the importance of publicsupport in U.S. politics, this exclusion dis-torts their account of the practices at issue.For the conflicts enumerated here, I pro- vide a brief framework for understanding eachcase and examine the actions of presidents andCongress in the context of public opinion. Ithen examine the similarities and differencesbetween Libya and the earlier cases. A strugglebetween the constitutionalist and presiden-tialist positions (positions 1 and 2 above, re-spectively) informs each case including the re-cent war in Libya. However, I argue that Libya is also different in an important way. It repre-sents an additional step toward “weak inter-nationalism” (position 3 above), a move thathas been obscured by the continuing and tra-ditional debate between the constitutionalistsand the presidentialists about the war powersclause. I then contend that weak internation-alism contravenes values central to Americanrepublicanism. This analysis closes with someproposed ways to counter this trend.
Somalia
In early 1992 the ruler of Somalia, Moham-med Siad Barre, was driven from power after a 22-year reign. A civil war ensued among well-armed clans. The fighting, along with an acutedrought, led to famine. In July the United Na-tions Security Council endorsed a plan to air-lift food and medicine to Somalia. The relief effort did not work. Armed gangs stole muchof the food and medicine.
9
Some in Congress sought a U.S. interven-tion in Somalia. A senior Republican sena-tor, Nancy Landon Kassebaum of Kansas,called for a UN security force to protect foodshipments. A Select Committee on Hungerchaired by Democrat Tony Hall of Ohio alsofavored a UN force to protect food shipments.The George H. W. Bush administration, incontrast, said peacekeepers should not bedeployed until there was a ceasefire. In early  August the Senate approved a resolution de-manding that President Bush urge the UN tosecure food shipments to Somalia. The Houseof Representatives concurred a week later.
10
The public was not engaged in the Somalianquestion.
11
 The Bush administration relented slowly.In September the president announced thatfour ships and 2,100 marines would sup-ply offshore support for UN peacekeepers inSomalia.
12
 Later in November, with no pub-lic notice, the outgoing president offered theUN Secretary General a large U.S. contingentto dampen conflict in Somalia. In DecemberBush announced that up to 28,000 U.S. sol-diers would go to Somalia as part of the UNeffort.
13
Bush claimed that only the UnitedStates had the resources to carry out this mis-sion to “save thousands of innocents fromdeath.”
14
As Bush said in his speech announc-ing the undertaking: “I can state with con-fidence we come to [Somalia] for one reasononly: to enable the starving to be fed.”
15
HouseSpeaker Thomas S. Foley (D-WA) agreed withBush, citing the “grave humanitarian conse-quences” of inaction.
16
Some important mem-bers of Congress remained cautious.
17
Once announced, majorities of the publicsupported the Somalian effort. From Decem-ber 1992 to March 1993, no fewer than 71percent of the public supported a relief effortinvolving American troops in that nation.
18
 Even at the start, when support for the mis-sion was high, a strong majority said the effortshould undertake only a limited role of reliev-ing misery.
19
Another survey found supportfor “humanitarian assistance” and majority opposition to the United States disarming thefactions in Somalia.
20
A majority doubted the

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