Article I, section 8 of the United States Constitution states that “Congress shall have the power … to declare war…” Since Congress has not declared war on Libya, is American involvement in the Libyan war unconstitutional?
Some members of Congress think so. Rep. Scott Ringell, a freshman from Virginia, said that the Libya hostilities “should trigger a debate within Congress and [among] the American people about proper interpretation and application of [the] Constitution. I’m surprised more conservatives aren’t speaking out about this issue.” Some Democrats have spoken out questioning the validity of the action. In the past, Senators Obama and Biden both said the president lacks the authority to do what President Obama has done.
The question of the constitutionality of the Libyan effort depends on the original public meaning of Article I, section 8 of the Constitution. Vice President (then Senator) Joseph Biden recalled that meaning in a speech on the Senate floor on July 30, 1998. He noted that the original draft of the Constitution would have empowered Congress to “make war.” James Madison and Elbridge Gerry moved that the language be changed to “declare war” so that the president would have the power “to repel sudden attacks.” Biden pointed out that only one framer, Pierce Butler of South Carolina, thought the president should have the power to initiate war.
Biden concluded that under the Constitution, the president could not use force without prior authorization unless it was necessary to “repel a sudden attack.” Presidential candidate Barack Obama agreed in 2007: “the President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”
Senator Biden also expounded on the framers’ reasons for limiting presidential discretion: