- Like many observers, I’m skeptical of how Operation Odyssey Dawn has been conceived, implemented, and explained.
- The most notable aspect of the reaction on Capitol Hill isn’t the few members who have staked out strong positions for or against the air strikes but the many members who have said nothing or spoken only about the need for the White House to consult with Congress. There are sound policy reasons why legislators might want to wait to make a substantive judgment (e.g., need more information, don’t want to undercut the president, etc.). But there are also strong political reasons—decide early and you might end up on the wrong side of the issue. That’s not where any legislator wants to be.
- You tell me what you think of the constitutionality of Operation Odyssey Dawn, and I will point you to a law professor who has written eloquently and at length making your case. Opining on the war powers is a cottage industry. I should know, my shelves are buckling under the weight of all of the books I have bought over the years on the topic. The problem is that there is only one authoritative voice on this issue—the U.S. Supreme Court. And it hasn’t talked, isn’t talking, and probably won’t talk about the issue. So law professors will continue opining. But know this: politics and not law will drive the debate from here on out.
- The calls on Capitol Hill for Congress to be consulted about Operation Odyssey Dawn show how far we have drifted from original intent when it comes to war powers. James Madison argued that President George Washington did not have the power to declare the United States neutral when war broke out between England and France in 1793. It’s hard to believe that he and most of his colleagues would have accepted the notion that a president couldn’t declare neutrality but could order attacks on another country on his own initiative.
My day job calls. If I can squeeze out some time later I will post some more thoughts about the debate over the constitutionality of what President Obama is doing. (Hint: By virtue of the War Powers Resolution alone he is on solid legal ground for the time being, assuming of course that someone could persuade a judge somewhere to hear a challenge to his actions. Good luck with that.)
But one last historical point I should have mentioned in the interview. Pierce Butler, a delegate from South Carolina, made a motion at the Constitutional Conventional in 1787 “for vesting the [war] power in the president, who will have all the requisite qualities, and will not make war but when the nation will support it.” No delegate seconded Butler’s motion . Butler did get a scolding, though, from Elbridge Gerry. (Yes, the same Elbridge Gerry whose later actions as governor of Massachusetts gave us the term “gerrymander.”) Gerry declared that he "never expected to hear in a republic a motion to empower the Executive alone to declare war."