Michael Lind: The False Defenders of Obama's War in Libya

[Michael Lind is Policy Director of the Economic Growth Program at the New America Foundation and is the author of"The Next American Nation: The New Nationalism and the Fourth American Revolution."]

Did the U.S. Congress delegate the power to compel America to go to war to the United Nations in 1945? That is the startling claim that is being made by some who claim that President Obama's decision to launch a third American war in Libya in addition to the Iraq and Afghan wars is constitutional. 

One blogger writes:"The clear legal authority for actions sanctioned by the United Nations Security Council lies within the United Nations Participation Act."

Another blogger writes:"You might also argue that the U.S. Constitution, under Article 1, Section 8 grants congress the exclusive right to make war. But subsequent law, embodied in Title 22 above, obviously override this with respect to treaties and agreements already signed into law (i.e. the UN charter)."...

In addition to lodging the power to authorize wars with Congress, Article 1, Section 8 of the Constitution gives Congress the following powers:

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; 

Suppose that Congress were to pass four laws -- one giving the IMF the power to borrow money on the credit of the United States; one delegating the power to negotiate U.S. trade treaties to the World Bank; a third giving the Organization of American States the authority to establish U.S. laws of citizenship and naturalization; and a fourth delegating the power to make bankruptcy law to the Organization for Economic Cooperation and Development. All four of those laws would be null and void, because Congress is not permitted to give its constitutional powers to another branch of the U.S. government or to foreign governmental or non-governmental entities. 

The Constitution cannot be amended by statute. It cannot be amended by treaty. It cannot be amended by precedent. It cannot be amended by public opinion poll. It cannot be amended by election result. It cannot be amended by humanitarian pity. The U.S. Constitution can only be amended by the procedures set forth in Article V of the Constitution itself. 

People are free, if they wish, to propose a 28th Amendment to the U.S. Constitution that would read as follows:"The President of the United States shall have power to initiate war on his own authority, without the prior approval of Congress; provided, however, that Congress may refuse to appropriate funding for the continuation of a war the president has begun." Such an amendment would create the situation that many people falsely claim to be the case today. Until such an amendment is ratified and goes into effect, however, the law of the land remains what it has always been, and President Obama’s war in Libya, even if it is moral, prudent and legally authorized under international law by the Security Council, is plainly unconstitutional.