Jim: I think we’ve come to the nub of our disagreement. Your central contention, as I understand it, is that wars conducted without congressional authorization were less common in early American history than they have been in recent American history. I just don’t think this argument can be sustained in the face of the historical record. The US Navy spent much of the 19th Century fighting to protect American interests, from China and Sumatra to the Carribean and Mediterranean. You may dismiss most of these skirmishes as “clearly not wars,” but I think that Max Boot’s phrase “small wars” conveys much more accurately what US forces have regularly engaged in from very early on (and Boot’s The Savage Wars of Peace: Small Wars and the Rise of American Power really drives home just how common it has been, starting in the first decade of the 1800s, for US forces to go to battle abroad).
I will say I’m a bit uncomfortable with John Yoo’s assertion that Presidents didn’t need congressional authorization even in many cases where they sought it. Surely an argument based in part on the historical record of how our Constitutional order has worked in practice mustn’t dismiss so much of that record. David Rifkin and Lee Casey make an interesting argument that airstrikes on Libya don’t require congressional approval as a Constitutional matter, but regime change would. I’m not entirely convinced that this is workable as a general principle, but I’m inclined to think it’s a pretty useful one for thinking about the specific case of Libya.
As a matter of policy, I’ve been ambivalent about the war in Libya precisely because of the administration’s caginess about the endgame: Gaddafi’s overthrow is the stated goal of US policy but not the stated goal of the military action. So I think Marco Rubio is right: The Senate should authorize the war, and state plainly that it’s a war to remove Gaddafi.