Wednesday, March 23, 2011

Libya and small wars

With the current hostilities in Libya, the topic of Presidential authority is back in the news. This side of "hope and change," the result is . . . not that different. Except that this time around we have fewer allies than last time. So what is the President's authority to use the military absent a Congressional declaration of war? That question is still very much undecided - from Congress' perspective that is. For the president, unilateral military deployment is a tradition as old as . . . John Adams (our second president and Washington's Vice President). The second president to behave such was Thomas Jefferson (third president). Even George Washington, while not deploying troops without Congressional declaration of war, preempted Congress by declaring neutrality in the French-British conflict, leading to a fascinating debate between Hamilton and Madison about Presidential authority. This, naturally, makes it difficult to argue that the founders behaved as if the president is merely the agent of Congress in military matters. Indeed, only five wars in US history have been "declared:" The War of 1812, The Mexican American War, The Spanish American War, World War I, and World War II. And in several of those instances, troops were already engaged at the time of the declaration. Undeclared wars include Vietnam, Korea, the Gulf War, Afghanistan, and Iraq, just to mention a few. Not even the Civil War was declared (although that was because the South was never recognized as an entity to declare war against). So while Congress has the Constitutional authority to declare war, the President is still the Commander-in-Chief, and absent defunding of his effort by Congress, can command the troops. In doing so, he is governed not so much by Constitutional constraints as by prudence.
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