At long last the United States has decided to enter into the fray in Libya, not as a leader, but as a follower. The United States has deferred to the United Nations and to Britain and France. The President seems to have deferred to his Secretary of State. And, lo, the Congress is nowhere to be found.
Whatever one thinks about the politics of this course of events, the constitutional questions that it raises are too serious to be shoveled under the rug. One basic theme of the American Constitutional order calls for a heavy dose of two great principles. The first is separation of powers and the second is checks and balances. Both of these are evident in the division of authority between Congress and the President in his role as Commander-in-Chief. The former is given the power to “declare war” and the latter shall run the wars that the Congress declared.
The thought behind this arrangement is that major commitments to military actions should require some large-scale political support, but the execution of that mission requires the concentrated control in the hands of a single person.
Yet that is not the way it generally happens. For the most part Congress does not like to declare wars. It creates internal political complications. So what it does is to authorize military action or make budgetary appropriations that permit the war to go on. Those strings are not quite as strong as an outright declaration. But perhaps they qualify as an “implied declaration,” which is half fact and half fiction.
But at the very least that process kept Congress in the loop. That does not seem to be the case this time around. Matters will, I suspect, go well if the air attacks achieve their intended goal, which should (but may not) be to drive Col. Muammar el-Qaddafi from an office that he has held for far too long. But in as a long term matter it is a worrisome situation when the President of the United States thinks that a UN Security Council declaration that allows intervention counts for more than a Congressional authorization.
It is an uneasy question whether our new multilateralism should count as a surrender of control. We need Congress to stand up and be counted to do something toward preserving our constitutional structure. Missing in action is not what we want or need from Congress.
Richard Epstein is the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution and the Laurence A. Tisch Professor of Law, New York University School of Law.
(photo credit: Jessica Mulley)