President Obama famously sold himself to the American people as a scholar of the U.S. Constitution, but he also conveniently left out the fact that under his interpretation of the founding document, the Arab League has more rights than you do.
At a House Foreign Affairs Committee hearing Sept. 5, Rep. Steve Chabot, R-Ohio, asked Secretary of State John Kerry: “President Obama did not come to Congress seeking a resolution on the use of force in Libya. What's the difference between Libya and Syria when it comes to seeking congressional authorization?”
Kerry responded, “The difference is that in the case of Libya, you had already passed a U.N. Security Council resolution and an Arab League resolution and a Gulf States Cooperation resolution, and you had a man who we knew was prone to follow through on his word promising that he was going to kill like dogs all the people in Benghazi. … So I think under those circumstances, the president felt the urgency, the emergency of protecting life and a capacity that had already been granted through the international community.”
In other words, if the Arab League gives its permission first, then Obama thinks that gives him the constitutional authority to launch a seven-month war against Libya. Congress need not be consulted at all.
But if the Arab League is silent, then Obama can seek approval from Congress for a limited strike. And even then, if he does not get it, he can completely ignore Congress if he so chooses.
Is Obama’s view of the president’s war powers consistent with the Constitution? Nope. Not even close.
Article I of the United States Constitution unequivocally grants Congress, not the president, the power “to declare war.”
This does not mean that Congress must officially declare war every time the president uses military force (Congress has only declared war five times in the history of the country).
But it does mean that the president must seek approval from Congress for the use of force at the earliest possible date.
This is what President Bush did when he secured an “Authorization for the Use of Force” before he invaded Iraq in 2003.
And Article II of the U.S. Constitution identifies the president as “the commander-in-chief of the Army and Navy of the United States.” This, the Supreme Court has held, empowers the president to use force if the U.S. has been attacked or faces imminent attack.
But that is not what happened in Libya. Neither Kerry, nor Obama has ever claimed that the United States was attacked, or faced imminent attack, from Libya.
What Obama has argued is that some penumbra of constitutional authority emanated from the nexus between foreign civilians being in danger and the blessing of the international community, thereby justifying Obama’s use of the United States military without constitutional approval.
But the Constitution does not say the president can attack another country just because “the international community” says it is OK. There is no “Arab League” clause in the Constitution empowering it to authorize the president to use military force.
The Constitution allows the president to use military force in just three situations: 1) with congressional approval; 2) after the U.S. has been attacked; 3) when the U.S. faces imminent attack.
By attacking Libya without consulting Congress, Obama violated his oath of office. His nakedly political decision to seek congressional approval for his unpopular plan to bomb Syria only highlights this hypocrisy.