It's absurd that President Obama has sought no Congressional authorization on the war-that-he-won't-call-a-war in Libya. The approval of the UN Security Council confers much less legitimacy than the approval of the elected representatives of the American people, and it's troubling to see the White House behaving as if the opposite were true.
Jim writes that unlike in Korea, in Libya there is "no larger geopolitical struggle in place." Given the events unfolding in the Arab world, it seems pretty clear to me that this is absolutely wrong, but even if you disagree, this seems like the sort of policy question that can't possibly be dispositive for Constitutional purposes. As for the reference to "fights with pirates, Indian tribes, and cattle rustlers that were clearly not wars" -- I'm sorry, am I misreading this, or is Jim actually trying to argue that the Libya War is a war but the Indian Wars were not? Tell that to Custer.
This all began with Jim's Friday salvo against John Yoo, objecting that Yoo does not cite the text of the Constitution in the short version of his legal argument, which ran at The Corner. I assume Jim must have missed the op-ed-length version of Yoo's argument, which ran the same day in the Wall Street Journal, and lays out an explicitly originalist case:
Their praiseworthy opposition to the growth of federal powers at home misleads [some Republicans] to resist Washington's indispensable role abroad. They mistakenly read the 18th-century constitutional text through a modern lens-for example, understanding "declare war" to mean "start war." When the Constitution was written, a declaration of war served diplomatic notice about a change in legal relations between nations. It had little to do with launching hostilities. In the century before the Constitution, for example, Great Britain fought numerous major conflicts but declared war only once beforehand.
Our Constitution sets out specific procedures for passing laws, appointing officers, and making treaties. There are none for waging war. The Constitution declares that states shall not "engage" in war "without the consent of Congress" unless "actually invaded, or in such imminent Danger as will not admit of delay"-exactly the limits desired by antiwar critics, complete with an exception for self-defense. But even these limits are absent when it comes to war waged by the president. The Framers wanted Congress and the president to struggle over war through the political process, not the courts.
Congress is too fractured, slow and inflexible to manage war. Its loose, decentralized structure would paralyze American policy while foreign threats loom. The Framers understood that Congress's real power would lie in the purse. During the 1788 Virginia ratifying convention, Patrick Henry attacked the Constitution for failing to limit presidential militarism. James Madison replied: "The sword is in the hands of the British king; the purse is in the hands of the Parliament. It is so in America, as far as any analogy can exist."
If Congress opposes action, it can reduce funding for the military, eliminate units, or freeze supplies. Congress ended U.S. involvement in Vietnam by cutting off funds for the war. Our Constitution has succeeded because it favors swift presidential action in war, later checked by Congress's funding power.
Maybe this analysis is wrong, but I don't see anything in Jim's posts that refutes it (or really even tries to).