James Madison would have smiled had he heard about President Obama’s maneuver, seemingly in defiance of the War Powers Act, to avoid asking Congress to authorize military action in Libya.
The act, passed in 1973, came at a time when the Vietnam War had been under way for years without any president asking for congressional approval. Members of Congress wanted future presidents to be obliged to come to them early on in a military action.
The Constitution, after all, had invested in Congress the sole power to declare war. And it rankled legislators that no president had sought congressional approval of a war since 1941, when Franklin D. Roosevelt appeared before a joint session of Congress the day after Pearl Harbor. The War Powers Act was expected to put a stop to presidential impunity in entering armed conflicts by requiring presidents to notify Congress within 48 hours of sending troops into action, and to begin withdrawing them after 60 days unless Congress voted to authorize the action.
Since the act’s passage, the country has gone to war many times under various guises, but presidents have blithely continued to act without congressional approval. The Libyan engagement has presented an ideal occasion for Congress to press the issue.
The 60-day deadline on Libya passed May 20. And then began the war of experts.
After Caroline Krass, acting head of the Justice Department’s Office of Legal Counsel, advised Obama that he should comply with the law, the president sought legal advice elsewhere, in an attempt to find some that was more to his liking. White House counsel Robert Bauer came through, issuing an opinion that the missiles we had been raining on Libya did not constitute “hostilities” as envisioned under the act. The president chose Bauer’s opinion over Krass’.
And why would Madison have smiled? Because this type of presidential reaction was exactly what he predicted would happen as chief executives confronted the limitations contained in the separation of powers established in the Constitution.
The Founding Fathers considered a balance of powers essential to preventing tyranny. As Madison wrote in his Federalist No. 51 essay, “Ambition must be made to counteract ambition.”
“The interest of the man,” he went on to explain, “must be connected with the constitutional rights of the place.”
The drafters of the Constitution wanted an energetic federal government, so they created one, investing it with powers not established in the Articles of Confederation. Then they set about figuring out how to keep their new institution from turning into a monster.
Some like to see the Constitution as a compendium of political virtue, but it would be more accurate to celebrate it as a work of engineering. It set up powers for Congress, the presidency and the Supreme Court, and then channeled and sluiced these streams of power to keep them under control.
The Constitution’s drafters expected Congress to be the superior power in the new government they were creating. It was the British Parliament, after all, that had shaken up the old imperial order with laws to rein in Colonial initiatives in the 1760s and 1770s.
The great respect George Washington had accrued during the fighting of the Revolutionary War argued for making the president commander in chief of American forces. But which branch would decide when to go to war? Because members of both the House and the Senate represented the communities from which soldiers and sailors would be drawn for future conflicts, wisdom dictated that the power to make war be put in their hands.
Keeping those two powers — declaring and waging war — separate involved an engineering feat Madison tellingly described as pitting the officeholders’ ambitions against each other.
Obama not only acted according to original expectations in his reluctance to have his authority curtailed, but so did Congress. Liberal Democrats and conservative Republicans have dropped their differences for the moment and joined together to check presidential power. Instead of acting like partisans, they are trying to chart a course of action to preserve their constitutionally mandated authority.
Madison went on to say that relying on personal ambition to maintain the separation of powers might seem to reflect on human nature, but what then, he asked, is government itself if not “the greatest of all reflections on human nature.”
Pundits like to point to statements Obama made about proper executive restraint when he was a law professor or a member of the Senate. They fail to realize that when he became president, the “interest of the man” would connect him to “the constitutional rights of the place.”
Joyce Appleby is a professor of history emerita at UCLA and the author of “The Relentless Revolution: A History of Capitalism.” She wrote this for the Los Angeles Times.