Can the President wage war in Libya without Congressional consent?

Anyone who has read the U.S. Constitution knows that it gives to Congress alone the powers “To declare War” and “To make Rules for the Government and Regulation of the land and naval forces.”

Congress gave to President George W. Bush specific authorization for his use of the U.S. armed forces in Afghanistan and Iraq. Is President Obama required to seek the authorization of Congress to wage war against the government of Libya?

The correct answer to that question is: It depends on who you ask.

Since the end of World War II, American presidents have routinely committed the country to war without a formal declaration of war by Congress. Think of Korea and Vietnam.

In 1973, as the Vietnam War was in its last phase, the U.S. Congress enacted into law the War Powers Resolution, overriding the veto of President Richard Nixon. The War Powers Resolution, often misnamed the War Powers Act, requires the president to notify Congress within 48 hours of committing American armed forces to military action. The War Powers Resolution sets a 60-day limit in which U.S. forces may remain in combat without authorization from Congress or a declaration of war, after which the President has 30 days to withdraw U.S. forces from combat.

Congress routinely cites the War Powers Resolution when it authorizes military action as it did in 2001 after the 9/11 terrorist attacks, and before the 2003 invasion of Iraq. But U.S. presidents rarely mention the War Powers Resolution, and never seek formal authorization pursuant to its specific provisions. This is because all U.S. presidents since the enactment of the War Powers Resolution regard it as an unconstitutional infringement on the powers of the president.

All presidents believe their power to wage war without specific Congressional authorization derives from the president’s constitutional designation as Commander in Chief of the armed forces, and from the president’s constitutional oath “to preserve, protect, and defend the constitution of the United States.”

No president seeks conflict with Congress over the use of force if that conflict can be avoided. So presidents will try to engage in military operations in a manner they believe is consistent with the War Powers Resolution by, for example, notifying the leaders of Congress before initiating military action.

There has never been a direct conflict between Congress and the president over the constitutionality of the War Powers Act. And in the event of such conflict, it is doubtful that any federal court could accept jurisdiction over such a political question.

Congress could in theory seek to cut off funding for military action it opposed but which the president was committed to continuing. Let’s hope we never reach that point.

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