Military Intervention in Libya Unconstitutional

Tenth Amendment Center
Issue CCLXXXII - March 26, 2011
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The recent military action in Libya raises an important question beyond the political debates revolving around national interests and moral obligation. Does the president have the Constitutional authority to unilaterally order U.S. forces into action?

“Absolutely not,” said Tenth Amendment Center executive director Michael Boldin.

The U.S. involvement in establishing a no-fly-zone over Libya clearly constitutes an act of war. The burnt-out tanks littering Libyan highways testify to this reality. Article I, Section 8, of the Constitution delegates the authority to declare war, placing that power solely in the hands of Congress.

The president serves as commander-in-chief, directing military action after a declaration of war. The framers intentionally and wisely separated those powers. Alexander Hamilton clarified this when he said that the President, while lacking the power to declare war, would have “the direction of war when authorized.”

“Unless the country is being invaded, if Congress does not declare war against another country, the president is constitutionally barred from waging it, no matter how much he wants to. Pre-emptive strikes and undeclared offensive military expeditions are not powers delegated to the federal government in the Constitution, and are, therefore, unlawful,” Boldin said.

Some argue the War Powers Act gives the president the authority to initiate military action as long as he reports to Congress within 48 hours. Congress then has 60 days to authorize or extend the action.

“Where in the Constitution is congress given the authority to change the constitution by resolution?” Boldin asks.  “The bottom line is that by using the U.S. military to begin hostilities against a foreign nation without a Congressional declaration of war, Barack Obama has committed a serious violation of the Constitution. While he certainly is not the first to do so in regards to war powers, it’s high time that he becomes the last.”

The Tenth Amendment Center exists to promote and advance a return to a proper balance of power between federal and State governments envisioned by our founders, prescribed by the Constitution and explicitly declared in the Tenth Amendment. A national think tank based in Los Angeles, the Tenth Amendment Center works to preserve and protect the principle of strictly limited government through information, education, and activism.

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