Advancing a Free Society

Libya–Advice to Congress

Friday, March 25, 2011

In the last few days several smart people have disagreed with my argument in favor of the constitutionality of the Libya intervention.  This is a perennial debate that arises every time the President threatens or uses force abroad without congressional authorization.  It is a remarkable fact about our 220-year old Constitution that the proper allocation of the war power is not settled in the public mind.

One reason it is not settled is that courts have declined to adjudicate the issue.  From this premise of non-justiciability, Andy McCarthysays:

[A]lthough President Obama’s unilateral commencement of a war against Libya is constitutionally wrong, he clearly has the power to do what he has done, for there are no legal remedies.  This is a political dispute, not a legal one.  Congress, if it is so disposed, will have to flex its competing constitutional muscles to rein the executive branch in.

I disagree with the first part of this.

Continue reading Jack Goldsmith at Lawfare