The U.S. invasion of Libya without authorization from (or even much consultation with) Congress has caused many people to note Barack Obama’s 2007 statement that “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.” This got me wondering about Harold Koh, the Legal Advisor to the State Department. Before assuming the job at State-L, one of the defining ideas of Koh’s two decades of scholarship and amicus litigation was, as he wrote in the 1990 brief in Dellums v. Bush that he took a lead on:
the structure and history of the Constitution . . . require that the President meaningfully consult with Congress and receive its affirmative authorization – not merely present it with faits accomplis– before engaging in war. . . . Congress must manifest its genuine approval through formal action, not legislative silence, stray remarks of individual Members, or collateral legislative activity that the President or a court might construe to constitute ‘acquiescence’ in executive acts.
Dellums was a challenge to the 1991 Iraq war, before the first President Bush sought and received congressional authorization.