Bruce Ackerman: The Constitutional Clock Is Ticking on Obama's War





[Bruce Ackerman is a professor of law and political science and Oona Hathaway is a professor of international law at Yale University. They are the authors of a recent article on limited war and the U.S. Constitution published by the Michigan Law Review.]

It's now clear that the Libya campaign won't last "days, not weeks," as U.S. President Barack Obama promised, but rather, months -- and maybe years. Before U.S. involvement stretches that long, however, the administration will have to confront the 60-day time limit set by the War Powers Resolution, during which the president may take unilateral military action without a congressional resolution. After the 60th day, if Congress refuses to consent to the operation, the president is required to withdraw from Libya within 30 days. Today is day 19....

...Indeed, the administration suggested on March 24 that "time-limited, scope-limited military action" isn't the sort of thing the Constitution had in mind when giving Congress the power to declare war.

This narrow redefinition of "war" represents a fundamental breach with constitutional tradition. "Time-limited, scope-limited military action" is as old as the republic. In 1798, the newly formed United States launched its first military struggle as a "limited war" with France. Instead of standing on the sidelines, Congress passed four separate statutes spelling out the scope and limits of the conflict. The Supreme Court then made it clear in 1800 that limited, as well as unlimited, wars must be approved by Congress....

In the modern era, all U.S. conflicts have been limited wars. The last time Congress pledged to devote "the entire naval and military forces of the United States and the resources of the Government" was when it declared war on Germany in World War II. In the aftermath of the Vietnam War (perhaps the most scarring limited war), Congress saw the need to pass the War Powers Resolution, which aimed to "fulfill the intent of the framers of the Constitution of the United States" by ensuring that the "collective judgment of both the Congress and the President" would control the use of force.

President Richard Nixon vetoed the resolution in 1973 precisely because it placed constraints on unilateral war-making by the executive office. But as the measure had the broad support of ordinary Americans, it was passed by a two-thirds majority in both the Senate and House. This judgment, made by a generation that had struggled through World War II, the Korean War, and the Vietnam War, should not be dismissed lightly....


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