President Obama's Use of our Military Forces

in Libya is Unconstitutional

Ó O. R. Adams Jr. 2011

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The military action by our armed forces against the military forces of Libya, in the current revolution in that country, is unconstitutional.

The Constitution of the United States, Article II, Section 2, provides in part: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States ... ." Common sense, as well as the historical data on the forming of our Constitution, tells us that this does not give the President unlimited power to use our armed forces as he sees fit.[1] He may use the armed forces to repel or prevent an imminent attack or threat of attack on the United States, to put down insurrections against the government, and things of this nature that put our country in immanent danger. Making war, as is being done in Libya, is not authorized when these imminent dangers to our country do not exist – and they do not exist by reason of the civil war in Libya. Such war like actions as those in Libya must first be approved by Congress to be constitutional. This is particularly clear considering the fact that the declaring of war is exclusively given to Congress under Article I, Section 8 of our Constitution. Declaration of war is a requirement and a duty of Congress, and it cannot change our Constitution by delegating this duty, or any part of it, to the President. It is Congress who must consider and weigh the circumstances, and make a decision on whether or not to engage in a war.

On the other hand, I do not see where it makes any constitutional difference whether the military action is called a war, or a police action or something else as in the cases of the Korean, Afghan, and Iraq wars; as long as Congress gives its approval.

In 1973, Congress passed the War Powers Resolution,[2] which is now in effect, and which provides for the taking of certain military action by the President, prior to congressional approval, and providing for when subsequent approval is needed, and reporting to Congress. As to the circumstances under which these military actions may be taken, the act provides:

(c) Presidential executive power as Commander-in-Chief; limitation

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to

(1) a declaration of war,

(2) specific statutory authorization, or

(3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

It is clear that none of these three conditions, as provided by the act, existed in Libya. Also, although I believe that the President, in addition to the powers related above in the 1973 War Powers Resolution, has authority to act against a threat of imminent attack on the country, and to prevent insurrections against the government, it is also clear that such situations as this did not exist. Since there was no prior Congressional approval, the President's action in Libya was unconstitutional. The fact that it may have been approved by the United Nations, the NATO countries, or any other countries or organizations, is irrelevant. None of these organizations or other countries can change our Constitution. Neither can it be changed by any agreements or treaties with them.


[1] See Obama’s Libyan Operations are Unconstitutional, http://www.tenthamendmentcenter.com/2011/03/28/obamas-libyan-operations-are-unconstitutional/.

[2] http://www.law.cornell.edu/uscode/50/usc_sup_01_50_10_33.html, http://en.wikipedia.org/wiki/War_Powers_Resolution; for current provisions of the resolution in FindLaw: http://codes.lp.findlaw.com/uscode/50/33/ 

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