Responding to the Administration's decision to attack Libya without Congressional authorization, Rep. John Boehner was uncharacteristically generous in yesterday's press release, requesting only that the Administration improve its communication skills. I'm just a librarian -- and certainly not a fan of the Jamahiriya. Still, if like me you thought the Constitution requires something more than a heads-up on this kind of thing, two recent pieces by Professors Bruce Ackerman and Oona Hathaway will be of interest.
In the January, 2011 issue of the Michigan Law Review, Professors Ackerman and Hathaway throw Congress a lifeline for reclaiming the authority it lost when the Bush Adminstration unilaterally transformed the limited war in Iraq as originally authorized by Congress into an open-ended conflict. After a discussion of the constitutional checks and balances involved in the decision to go to war, the authors illustrate how the Bush Administration set a precedent for aggrandized presidential power. They also lay some of the blame on Congress for failing to alter the appropriations process to deal with the distinct problems presented by limited wars. To both foster democratic debate over the use of force and to restore the balance of power, the authors propose Congress adopt "Rules of Limited War" that would "create a presumption that any authorization of military force will expire after two years, unless Congress specifies a different deadline."
Professors Ackerman and Hathaway followed up with a piece in the Huffington Post in which they emphasized that the Constitution grants Congress, not the President, the power to declare war. "If [President Obama] acts unilaterally, he will be consolidating on of the worst aspects of the Bush era, and set a precedent for further abuses by future presidents". Cue future abuses.
Jennifer K. Elsea et al., Cong. Research Serv., RL 33837, Congressional Authority to Limit U.S. Military Operations in Iraq (2008).
Memorandum from John C. Yoo, Deputy Ass't Att'y Gen., Office of Legal Policy, Dep't of Justice, to the Deputy Counsel to the President, The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them (Sept. 25, 2001).
Michael A. Genovese, Presidential Prerogative: Imperial Power in an Age of Terrorism (2011).
Victor M. Hansen, The Case for Congress: Separation of Powers and the War on Terror (2009).