Congress’reaction to President Obama’s decision to launch a militaryintervention in Libya has been supine even by Congress’ usualstandards. Congress vigorously debated and refused to authorizePresident Clinton’s military intervention in Kosovo in 1999 (Clintonintervened anyway). Congress debated and authorized the attacks onAfghanistan in 2001 and Iraq in 2003. Yet Congress has been mostlysilent about the intervention in Libya. Why?
President Obama isfollowing a long line of precedents in which the executive lanched aforeign war without congressional authorization. The presidentdisavowed these precedents during his campaign; he may or may notattempt to distinguish his campaign statement by invoking the UNsecurity council resolution authorizing the attack, as Truman did forKorea. But this legal wrangling is all superstructure. Congress isdisabled in numerous ways from making practical contributions to a wareffort. It cannot prevent the president from starting a war, and it isnearly impossible to halt an ongoing war. Wars, then, simply become anopportunity for members of Congress to stake their reputations as hawksor doves for the sake of future elections.
The Libyaintervention provides an instructive example of the disabilitieshampering Congress. Events in Libya unfolded with extraordinaryrapidity, while the proper American stance depended on numerousconstantly changing factors—the security situation in Libya, theattitudes of neighboring states and their populations, and thepositions of foreign powers such as the UK, France, China, and Russia.A major source of complexity is that these various attitudes andpositions depended in part on what other people thought the UnitedStates would do. The rebels might hold out if they believed that theUnited States would intervene, and by holding out possibly prevailwithout American intervention. The UK and France might sound thetocsins of war only as long as they believed that the United Stateswould support them if they obtained the acquiescence of othercountries, which in turn would care about American attitudes as well.As these various actors calculated their moves, they sent out feelersto the U.S. executive and received responses—promises, hints,suggestions. Eventually, international opinion coalesced and militaryintervention followed.
Congress could not play a role. Lacking aleader who could commit it to a course of action, Congress could notmake promises. Lacking a single mouthpiece, it could not be consulted.Foreign countries naturally turned to the president. Nor is itrealistic for Congress to formally ratify the president’s decision ifformal ratification involves the possibility of rejection. Then thenext time that the United States is involved in a foreign policycrisis, other countries won’t know who to speak to, and who to believe.
We live in a system of executive primacy, as Adrian Vermeule and I have argued in our new book, The Executive Unbound: After the Madisonian Republic.It is a consequence of natural institutional developments andnecessities. The contrary view, which was written into the U.S.Constitution, could survive only as long as the United States wasprotected by two oceans from foreign threats and could focus onterritorial expansion within a continent populated only by Indians, whowere never a major threat—and even then it was honored more in thebreach than in the observance. Those who are skeptical about the Libyaintervention should address their policy arguments to the executive,and stop complaining that Congress has not authorized the war. Hereis Jack Goldsmith arguing that Obama will invoke the UN SecurityCouncil resolution as his legal justification (why this is necessaryafter Clinton’s Kosovo intervention, which had no such resolution, isnot explained); hereis Andrew Sullivan arguing that Congress should do something, anything(“A congressional vote is also important to rein in the imperialpresidency that Obama has now taken to a greater height then evenBush.”); and here is Ilya Somin’s post on the topic yesterday describing the protests of “several” (nine!) members of Congress.
President Obama isfollowing a long line of precedents in which the executive lanched aforeign war without congressional authorization. The presidentdisavowed these precedents during his campaign; he may or may notattempt to distinguish his campaign statement by invoking the UNsecurity council resolution authorizing the attack, as Truman did forKorea. But this legal wrangling is all superstructure. Congress isdisabled in numerous ways from making practical contributions to a wareffort. It cannot prevent the president from starting a war, and it isnearly impossible to halt an ongoing war. Wars, then, simply become anopportunity for members of Congress to stake their reputations as hawksor doves for the sake of future elections.
The Libyaintervention provides an instructive example of the disabilitieshampering Congress. Events in Libya unfolded with extraordinaryrapidity, while the proper American stance depended on numerousconstantly changing factors—the security situation in Libya, theattitudes of neighboring states and their populations, and thepositions of foreign powers such as the UK, France, China, and Russia.A major source of complexity is that these various attitudes andpositions depended in part on what other people thought the UnitedStates would do. The rebels might hold out if they believed that theUnited States would intervene, and by holding out possibly prevailwithout American intervention. The UK and France might sound thetocsins of war only as long as they believed that the United Stateswould support them if they obtained the acquiescence of othercountries, which in turn would care about American attitudes as well.As these various actors calculated their moves, they sent out feelersto the U.S. executive and received responses—promises, hints,suggestions. Eventually, international opinion coalesced and militaryintervention followed.
Congress could not play a role. Lacking aleader who could commit it to a course of action, Congress could notmake promises. Lacking a single mouthpiece, it could not be consulted.Foreign countries naturally turned to the president. Nor is itrealistic for Congress to formally ratify the president’s decision ifformal ratification involves the possibility of rejection. Then thenext time that the United States is involved in a foreign policycrisis, other countries won’t know who to speak to, and who to believe.
We live in a system of executive primacy, as Adrian Vermeule and I have argued in our new book, The Executive Unbound: After the Madisonian Republic.It is a consequence of natural institutional developments andnecessities. The contrary view, which was written into the U.S.Constitution, could survive only as long as the United States wasprotected by two oceans from foreign threats and could focus onterritorial expansion within a continent populated only by Indians, whowere never a major threat—and even then it was honored more in thebreach than in the observance. Those who are skeptical about the Libyaintervention should address their policy arguments to the executive,and stop complaining that Congress has not authorized the war. Hereis Jack Goldsmith arguing that Obama will invoke the UN SecurityCouncil resolution as his legal justification (why this is necessaryafter Clinton’s Kosovo intervention, which had no such resolution, isnot explained); hereis Andrew Sullivan arguing that Congress should do something, anything(“A congressional vote is also important to rein in the imperialpresidency that Obama has now taken to a greater height then evenBush.”); and here is Ilya Somin’s post on the topic yesterday describing the protests of “several” (nine!) members of Congress.
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