The 112th Congress, the War Powers Resolution, and the 2011 Libya Operation:
A Normative Analysis of Functional and Organizational Incapacity
Brien Hallett,
Associate Professor
Institute for Peace
University of Hawai'i
2424 Maile Way, #717
Honolulu, HI 96822
Tel: (808) 956-4236
FAX: (808) 956-0950
[email protected]
Prepared for delivery at the 2012 Annual Meeting of the
Western Political Science Association, March 22-24, 2012
Panel 04-03 Warmaking and the National Security Presidency
Thursday, March 22, 2012, 10:00 - 11:45 AM
ABSTRACT
Article I, section 8 of the Constitution tasks the Congress with declaring war. The
necessary implications of this task are that the Congress is 1) functionally adapted to
declaring war and 2) organizationally capable of doing so. Should the Congress lack the
proper organization to declare war or should the task be incompatible with its domestic
legislative functions, then no one should be surprised to discover repeated and persistent
failure on the part of the bicameral Congress "to declare war." Since this is precisely the
case, identifying the functional mal-adaption and organizational incapacity of the
Congress is an issue of some interest, if not importance. To this end, few examples
illustrate the phenomenon more clearly than congressional response to the 2011 United
Nations sanctioned no-fly zone in support of the anti-Gaddafi Libyan insurgents.
***
Where Is the Problem?
A counter-normative, value-neutral, positive perspective is a powerful tool for
understanding social and political phenomenon. For example, this perspective easily
explains the feeble response of the 112th Congress to American military support for the
uprising against Maummar Gaddafi's regime. The 2011 Arab Spring began with the
overthrow of Presidents Zine El Abidine Ben Ali of Tunisa in January and Hosni
Mubarak of Egypt in February. Within days of Mubarak's resignation, protests broke out
in Benghazi, which soon degenerated into a fully-fledged armed insurgency. By midMarch, Arab and international opinion had turned decisively again the Gaddafi regime
and for supporting the beleaguered insurgents. This led, on 17 March 2011, to the
passage by the United Nations Security Council of Resolution 1973, which established a
no-fly zone over Libya. Initially reluctant to join the NATO led operation, President
Barak Obama changed his mine on 19 March 2011 and committed American forces to
Operation Odyssey Dawn, the Pentagon's name for American participation to enforce the
no-fly zone.
The response of the 112th Congress to the president's commitment was both
delayed and weak. It was delayed because the War Powers Resolution of 1973 mandates
a sixty-day grace period for the president before the Congress can exercise its
constitutionally mandated power "to declare war." In effect, the Resolution holds
operation of the Constitution in abeyance for sixty days, unless the president decides to
activate the Congress sooner by making an explicit request for congressional action.
Since President Obama made no such request, the 112th Congress was legally barred by
the Resolution from taking any action. At the end of the sixty-day grace period, twelve
resolutions by two senators and six representatives were introduced. Of these twelve,
eight died in committee, three were defeated on the House floor, and one was passed in
the House, but was immediately tabled for reconsideration. Of note, the last resolution to
be introduced, House Resolution 2278, called for the Congress to exercise its "power of
the purse" to cut off funding for Operation Odyssey Dawn. Needless to say, it was
soundly defeated on 24 June 2012, 180 yeas to 238 nays. In essence, one saw scattered
individual initiatives here and there, but no concerted or coordinated effort anywhere. As
a result, the 112th Congress did nothing but make a few speeches during short breaks in
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its otherwise very busy legislative schedule. Most emphatically, it did not exercise its
constitutional power "to declare war."
For those concerned with this less than energetic congressional response, a
counter-normative, value-neutral, positive methodology provides two complementary
explanations. First, but of lesser importance, William G. Howell and Jon C. Pevehouse
in their excellent study, While Danger Gathers: Congressional Checks on Presidential
War Powers (2007), conclude:
To the great consternation of constitutional scholars, members of Congress do not
feel much duty to thwart any and all challenges to the foreign policy powers and
responsibilities laid out in Article I [of the Constitution "to declare war"]. Rather,
congressional checks on presidential war powers materialize under well-specified
conditions, having to do with the institution's partisan composition, the size of a
potential deployment, and the strength of international obligations (223).
In the case of Operation Odyssey Dawn, the extremely partisan composition of the TeaParty-led 112th Congress did not play much of a role. Rather, the insignificant size of the
deployment and the strength of the international obligations of the United States to both
the United Nations and NATO were the two principal factors in enfeebling the
congressional response. Which is only to say, when compared to either the then on-going
Iraqi or Afghan wars, American participation enforcing the Libyan no-fly zone was
neither controversial nor politically consequential.
Second, and more important than the political factors, Terry Moe and William G.
Howell in their "Unilateral Action and Presidential Power: A Theory" conclude:
Disabling problems are rampant, and they are built into the collective nature of
the institution. . . in any majority rule institution with diverse members, so many
different majority coalitions are possible that, with the right manipulation of the
agenda, outcomes can be engineered to allow virtually any alternative to win
against any other. Put more simply, agenda setters can take advantage of the
collective action problems [including high transaction costs and difficulties in
coordinating shared interests] inherent in majority-rule institutions to get their
own way (Moe and Howell 1999, 862).
Thus, underneath questions of "political will" and the flux of partisan politics, one
discovers a more persistent and more fundamental institutional or organizational
explanation for the inaction of the 112th Congress. Inertia. Simply because the Congress
is a large, very busy, bicameral, majority-ruled institution, it requires presidential
leadership and agenda setting in order to overcome its debilitating 1) collective action
problems, 2) high transaction costs, and 3) difficulties in coordinating shared interests.
But notice the problem: A counter-normative, value-neutral, positive
methodology does provide an explanation. This is a good thing. However, it does so by
documenting congressional dysfunction. Basically, it argues tautologically that the
Congress fails to check presidential war powers because the Congress fails to check
presidential war powers, and this is how it fails--partisan politics and organizational
incapacity. The excellence of the counter-normative, value-neutral, positive explanation
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notwithstanding, "the great consternation of constitutional scholars" is not assuaged by
such tautologies, as Howell and Pavehouse conceded:
Throughout, this book takes a decidedly positive--contra-normative--perspective.
We do not consider who ought to declare war. We do not ruminate on the
constitutionality of recent presidential uses of force. Nor do we consider whether
careful deliberations (which, presumably, Congress can best deliver) or energy
and dispatch (mainsprings of executive leadership) contribute more to a
successful foreign policy. Instead, we set our sights on how the federal
government works in practice, how powers are asserted, how institutional
advantages are advanced,. . . (2007, xiii).
In order to relieve the consternation of constitutional scholars, and many others as
well, one must move beyond the comforting tautologies produced by a positive, counternormative perspective. In its place, one must move to an explicitly normative, valuedriven analysis. After all, the Federal Convention placed the power "to declare war" in
the Congress in order to achieve a certain value-driven goal. As James Madison wrote to
Thomas Jefferson on 2 April 1798, "The constitution supposes, what the History of all
Govts demonstrates, that the Ex. is the branch of power most interested in war, & most
prone to it. It has accordingly with studied care vested the question of war in the Legisl."
True enough, but what a positive, counter-normative, value-neutral perspective
demonstrates beyond dispute is that the Federal Convention's "studied care" was neither
sufficiently "studied" nor sufficiently "careful." That "vesting the question of war in the
Legisl" has not in fact restrained "the branch of power most interested in war, & most
prone to it." That "what the History of all Govts [including the government of the United
States since 1789] demonstrates" is that deciding the question of war or peace is a royal
prerogative, and always has been.
A pivot to an explicitly normative perspective naturally raises a number of
questions: Is it possible to abandon a positive, counter-normative perspective and turn to
an explicitly normative perspective? Is it possible to imagine an alternative to the Federal
Convention's failed attempt to wrest the power "to declare war" from the executive? Is it
possible that the declaring of war could be anything but a royal prerogative? All history
demonstrates positively that the declaring of war is a royal prerogative. Does this not
prove conclusively that an alternative is not possible?
To begin to imagine an alternative, one must first take note of the dysfunctions
created when the power "to declare war" is misplaced and vested in the legislative branch
of government. In one sense of dysfunction, its "not-operating-correctly" sense, a
positive, counter-normative perspective demonstrates that a large, very busy, bicameral,
majority-ruled legislature cannot exercise this power because it cannot overcome 1) its
extreme collective action problems, 2) its very high transaction costs, and 3) its enormous
difficulties in coordinating shared interests. This positive diagnosis implies an extremely
simple remedy: Reduce the size and organizational complexity of the legislative branch.
Obviously, an assembly organized as a unicameral body and composed of, say, fifty-six
or, perhaps, fifteen members would encounter 1) greatly reduced collective action
problems, 2) much lower transaction costs, and 3) greater facility in coordinating shared
interests. An assembly of reduced size and organizational complexity could surely do
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what the United States Congress cannot do--declare war. From a positive, counternormative, value-neutral perspective, the solution to congressional incapacity is,
therefore, simple indeed.
Yet, in another sense of dysfunction, its "wrong-function" sense, such a reduction
in the assembly's size and organizational complexity would destroy the assembly's ability
to discharge its primary function of passing domestic legislation. At least, such a reduced
assembly would be incapable of legislating for a large, modern, complex country of
millions of citizens--thousands, perhaps, but not millions. A reduced assembly of fifteen
or even fifty-six members legislating for a modern country of many million sounds more
like a politburo than a legislature.
This functional mal-adaption is, of course, the normative heart and soul of the
matter. It was created by the way in which the Federal Convention indiscriminately
mixed apples with oranges. The declaring of war is clearly not a matter of domestic
legislation. It is a matter of foreign affairs. Likewise, domestic legislation is not a matter
of foreign affairs. It is a matter of internal affairs. John Locke was exceptionally clear
on this point in his Second Treatise, Chapter XII, Of the Legislative, Executive, and
Federative Power of the Common-wealth:
Sec. 146. This [fœderative power] therefore contains the power of war and peace,
leagues and alliances, and all the transactions, with all persons and communities
without the common-wealth,. . . . And though this fœderative power in the well or
ill management of it be of great moment to the common-wealth, yet it is much
less capable to be directed by antecedent, standing, positive laws,. . . (Locke 1764
[1690], XII).
Pointing to the obvious, Locke notes that the common-wealth possesses both an inside
and an outside. To deal with its domestic affairs, the common-wealth exercises its
legislative function or power by making "the municipal laws of the society within its self"
(ibid.). To deal with its foreign affairs, the common-wealth exercises its fœderative
function or power by exercising its "power of war and peace, leagues and alliances."
Critically, Locke notes that the two functions are incompatible because "war and peace,
leagues and alliances" cannot "be directed by antecedent, standing, positive laws."
Likewise, "antecedent, standing, positive laws" cannot be made by "all the transactions,
with all persons and communities without the common-wealth." The functional
incompatibly of domestic apples with foreign oranges is nearly total.
In fine, the explicitly normative explanation for the persistent failure of the
Congress "to declare war" is the negative synergy generated by mixing two incompatible
functions, while simultaneously exacerbating the negative synergy with organizational
complexity. To see this, particular attention must be paid to Locke's exceptionally clarity
and forward thinking on the incompatibility of the two functions and, therefore, on the
need to vest each function in a different and distinct branch of government. That being
said, his choice of the executive as the branch for discharging the fœderative power was
unfortunate, rather too traditional and backward looking. James Madison critique of
Locke's Chapter XIV, Of Prerogative no doubt explains Locke's lack of innovative
thinking, "The [Locke's] chapter on prerogatives shows, how much the reason of the
philosopher was clouded by the royalism of the Englishman" (1900-10, 144, n. 1).
5
Inopportunely though, Madison's sharp-eyed criticism of Locke' royalism did not
also beget forward-looking and innovative thinking on his part, only confusion. On the
one hand, writing in the summer of 1793 as Helvidius, Madison clearly understood that
the power to declare war was neither a legislative nor an executive power. It was
something else; it was transformative:
A declaration that there shall be war, is not an extension of laws: it does not
suppose pre-existing laws to be executed: it is [also] not, in any respect, an act
merely executive. It is, on the contrary, one of the most deliberate acts that can be
performed: and when performed, has the effect of repealing all the laws operating
in a state of peace, so far as they are inconsistent with a state of war; and of
enacting, as a rule for an executive, as new code adapted to the relations between
the society and its foreign enemy. In like manner, a conclusion of peace annuls
all the laws peculiar to a state of war, and revives the general laws incident to a
state of peace (ibid. 145).
On the other hand, like Locke, Madison was unable to imagine that the fœderative power
to declare war could be performed by any branch of government other than the executive
or the legislature. In the executive, because kings and emperors had done so from time
immemorial. In the legislature, because the judiciary was obviously not the proper locus
for the exercise of this fœderative power. The options, it would seem, were limited,
clear, and undisputed; the choice, in consequence, turns solely on one's ideological
preference. Thus, by a simple and direct process of elimination, any royalist like Locke
must conclude that the powers of making war and treaty are substantially of an executive,
not a legislative nature, whereas any anti-royalist like Madison must conclude "that the
powers of making war and treaty being substantially of a legislative, not an executive
nature" (ibid. 146). Yet, one might ask from a normative perspective, how is it possible
for a power that is indisputably non-legislative and non-executive to be "substantially"
either legislative or executive? How is it possible for a sui generis power to be
catalogued under another genus?
Locke's beclouded royalism and Madison's confused anti-royalism
notwithstanding, one can still discern the outlines of a two-pronged solution. From a
counter-normative, value-neutral, positive perspective, one learns that the Congress is
incapable of declaring war because it is a large, very busy, bicameral, majority-ruled
assembly. It follows, therefore, that any alternative must be a small, unicameral,
majority-ruled assembly of, say, fifty-six or, perhaps, fifteen members. From an
explicitly normative perspective, one learns that the Congress is incapable of declaring
war because this legislative assembly has been burdened with an incompatible fœderative
function. It follows, therefore, that any alternative must be a mono-function assembly
dedicated solely to exercising Locke's fœderative power. With this in mind, consider as
an initial example the functional and organizational differences between the United States
Congress and the Second Continental Congress.
An Initial Example
Organizationally, the Second Continental Congress was a unicameral assembly
composed of fifty-six delegates operating under a committee-of-the whole system.
6
Functionally, the Second Continental Congress was a revolutionary assembly tasked with
conducting the foreign affairs of Britain's thirteen rebellious colonies in North America.
That is, the rebellious colonies' fœderative powers. Crucially, responsibility for domestic
legislation remained in the thirteen state legislatures. Hence, the functional distribution
of responsibilities was exceptionally clear during the period 1774-1781. Naturally, the
power to declare war was among the fœderative responsibilities of the small, unicameral
Second Continental Congress, which it famously exercised on 4 July 1776. How, then,
did the Second Continental Congress do that which the United States Congress has so
conspicuously failed to do?
In accordance with its committee-of-the-whole procedures, on Friday, 7 June
1776, Richard Henry Lee of Virginia took the floor to introduce the premises of four
resolutions. Lee's motion was seconded by John Adams of Massachusetts. The first
resolution held, "That these United Colonies are, and of Right ought to be, Free and
Independent States, that they are absolved from all allegiance to the British Crown, and
that all Political connection between them and the State of Great Britain is, and ought to
be, totally dissolved." This premise was debated by the entire assembly in a concerted
and coordinated way for three days and then tabled to allow for further thought and
discussion and to allow an ad hoc committee of five to draft a full resolution. The ad hoc
committee reported back to the entire assembly on Friday, 28 June 1776. On Monday, 1
July 1776, the premise of the resolution was taken up again and debated by the entire
assembly in a concerted and coordinated way. It was approved the next day by the entire
assembly. The committee's draft declaration was now introduced to the entire assembly,
debated by the entire assembly, amended by the entire assembly, and voted by the entire
assembly on Thursday, 4 July 1776.
In fine, in 1776, a small, unicameral assembly organized as committee-of-thewhole without responsibilities for domestic legislation conducted the foreign affairs of
the rebellious colonies and declared war. The relevant contrast, of course, is with the
large, bicameral United States Congress organized into standing committees with its
extensive--one might say overwhelming--domestic legislative responsibilities
unsuccessfully attempting to declare war now and again. Not only is the organizational
contrast striking, but the functional muddle is stark. The Second Continental Congress
was responsible for all fœderative powers and no domestic legislation. The United States
Congress is responsible for all domestic legislation and only an extremely limited number
of fœderative matters--most notably, the declaring of war.
One may speculate that this functional intermingling of the two incompatible
responsibilities was not initially debilitating. In 1789, the United States Congress might
have conceivably declared war just as the Second Continental Congress had. The First
Congress counted sixty-five members in the House and its legislative workload was not
overwhelming. As a result, the early Congresses were able to continue to use the
traditional committee-of the-whole system organization. Had a member introduced the
question of war or peace, the early Congresses could have followed the procedures used
by the Second Continental Congress and might possibly have declared war. But this is
purely speculative since no member ever introduced the question.
Be that speculation as it may, by 1812, the situation was transformed. By the time
of the Twelfth Congress, the House had grown to one hundred and forty-three members
and its legislative workload had become, if not overwhelming, at least burdensome. As a
7
result, the modern standing committee system was rapidly replacing the traditional
committee-of the-whole system. Even in these its earliest manifestations, the standing
committee system fragmented the members' attention, interests, and time, making them
ever more dependent upon presidential leadership and agenda setting (White 1951, 56;
Cooper 1965). As a consequence, if war with Great Britain were to be had in 1812,
President James Madison would have to make the decision, provide the leadership, and
manipulate the key House committees. With the able assistance of the War Hawks and
freshman Representative Henry Clay, the newly elected Speaker of the House, this is
precisely what happened.
President Madison decided for war and against peace during August 1811 while
at his home in Montpelier during the visit of his new Secretary of State, James Monroe.
As Monroe wrote to John Taylor in 13 June 1812:
Nothing would satisfy the present ministry in England, short of unconditional
submission, which it was impossible to make. This fact being completely ascertained,
the only remaining alternative, was to get ready for fighting, and to begin as soon as
we were ready. This was the plan of the administration, when [the Twelfth] Congress
met in November last; the President's message announced it; and every step taken by
the administration since has led to it (James Monroe Papers 1960).
Among the steps taken by the administration, one of the most effective was for Secretary
Monroe to actually write the congressional declaration of war and its accompanying
manifesto. The very busy Twelfth Congress was most appreciative to be relieved of this
burden. Even more effective, however, was Secretary Monroe's frequent dinners at the
"War Mess," the boarding house where Speaker Clay and most of the War Hawks stayed.
This close executive "consultation" reached its climax on Sunday, 15 March 1812, when
Secretary Monroe presented the president's legislative strategy to Speaker Clay. In an
aide-mémoire of the meeting, Speaker Clay articulated the dictum that has enabled
presidential control of the congressional power to declare war since:
Altho' the power of declaring War belongs to Congress, I do not see that it less
falls within the scope of the President's constitutional duty to recommend such
measures as he shall judge necessary and expedient than any other which, being
suggested by him, they alone can adopt (Clay 1959-1984; 1:637. See also
Monroe 1960).
In 1973, "the President's constitutional duty to recommend" was reformulated in the War
Powers Resolution (Pub. L. 93-148; 87 Stat. 555) as a duty of "collective judgment":
PURPOSE AND POLICY
Sec. 2. (a) It is the purpose of this joint resolution to fulfill the intent of the
framers of the Constitution of the United States and insure that the collective
judgment of both the Congress and the President will apply to the introduction of
United States Armed Forces into hostilities, or into situations where imminent
involvement in hostilities is clearly indicated by the circumstances, and to the
continued use of such forces in hostilities or in such situations.
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But, of course, the thorn in the rose of "collective judgment" is that someone must initiate
the process. Someone must motivate the process by deciding the question of war or
peace. That "someone," needless to say, is the president, and not the Congress. This
means that the president and his "recommendation" controls the when, where, and what
of the "collective judgment." Should any doubt over the president's control exist, section
three of Resolution makes the point clear:
CONSULTATION
Sec. 3. The President in every possible instance shall consult with Congress
before introducing United States Armed Forces into hostilities or into situations
where imminent involvement in hostilities is clearly indicated by the
circumstances, and after every such introduction shall consult regularly with the
Congress until United States Armed Forces are no longer engaged in hostilities or
have been removed from such situations.
Again, the thorn in the rose of "consultation" is that it is the president who consults with
the Congress, the Congress never "consults" with the president. Consequently, the
initiative always rests with the president. He decides; he consults; the Congress agrees.
As already noted, the statutory loss of congressional initiative in the War Powers
Resolution exacerbates this very unequal situation. By law, the president is free to
"introduce United States Armed Forces into hostilities or into situations where imminent
involvement in hostilities is clearly indicated" for sixty days secure in the knowledge that
the Congress cannot act (Glennon 1995; Fisher and Adler 1998; The National War
Powers Commission Report 2008). Once "introduced," the game is up.
To be sure, one can easily speculate that, with sufficient political will, the
Congress could seize the initiative, exercise its constitutional power "to declare war," and
decide the question of war and peace before "consulting" with the president. The Second
Continental Congress did seize the initiative, why not the United States Congress? The
"why not," of course, turns on the difference between the organizational competence and
functional adaptation of the two assemblies. As already noted, these differences are well
illustrated by the congressional response to the 2011 international support for the Libyan
anti-Gaddafi insurgents. In particular, one must pay attention to three "players"--to the
grotesque incapacity of the 112th Congress, the indifference of President Barak Obama,
and the understated competence of the United Nations Security Council with its
Resolution 1973 of 17 March 2011.
The Security Council
The United Nations was established by the victorious Allies on 26 June 1945, six weeks
before the end of the Second World War. It was established for the purpose of
maintaining international peace and security in the post-war world (Article 1:1). To
accomplish this objective, the "primary responsibility for the maintenance of international
peace and security" was devolved to the Security Council (Article 24:1). To accomplish
this objective most effectively, the Security Council was given a narrow, well-defined
function and an appropriate organization. Organizationally, the Council is a very small,
fifteen-member, unicameral assembly, organized on a committee-of-the-whole basis
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(Article 23:1). Functionally, it operates mainly under powers granted to it in Chapters
VI, Pacific Settlement of Disputes, and VII, Action With Respect To Threats To The
Peace, Breaches Of The Peace, And Acts Of Aggression.
Although it is politically incorrect to say so, the Chapter IV and Chapter VII
resolutions passed by the Security Council are functionally equivalent to declarations of
war. Because the Council is not sovereign, only the member states are, its resolutions are
not and cannot be official declarations of war. Yet, true to its World War II origins, the
Council is the alliance coordinating committee where functionally equivalent declarations
are made. It is the place where the ambassadors of fifteen sovereign nations-states meet
to propose, debate, and resolve the question of war and peace collectively, together as
potential allies. The net result is that the passions and quirks of individual kings,
presidents, and prime ministers are subdued and restrained by the Council's collective
deliberations and decisions. The existence of the Security Council means that no one
person decides the question of war or peace. Instead, an unicameral assembly of fifteen
operating under committee-of-the whole rules decides collectively.
The parallel between the fifteen ambassadors to the Security Council and the
fifty-six delegates to the Second Continental Congress is precise and exact. Like the
Second Continental Congress, the Security Council neither debates nor makes domestic
legislation for the member states. The functions of both are narrowly confined to
fœderative or international affairs. Also like the Second Continental Congress, the
Security Council meets in camera. In the Council's private room, members introduce the
premise of resolutions and debate these premises as a committee-of-the-whole. They
then go on to draft, debate, and amend the texts of the final resolutions under committeeof-the-whole rules in camera, before adjourning to the Council's ceremonial chamber for
public speeches and a public vote. The contrast with inappropriate organization and the
muddled Declare War Functions of the United States Congress are striking, indeed.
Be that as it may, the Libyan portion of the Arab Spring began four days after the
resignation of the President Hosni Mubarak in Egypt when large-scale protests broke out
in Benghazi on 15 February 2011. The protests were soon followed by scattered fighting.
The Security Council took note of this on 26 February 2011, when it passed Resolution
1970, under its Chapter VII, Article 41 authority to call for "measures not involving the
use of armed force." Resolution 1970 demanded "an immediate end to the violence and
calls for steps to fulfil (sic) the legitimate demands of the population." Needless to say,
Maummar Gaddafi ignored the resolution. The situation in Libya continued to
deteriorate over the next three weeks. To save the situation, the Arab League announced
its support for a European sponsored, United Nations sanctioned no-fly zone over Libya
on 12 March 2011 (Bonner and Sanger 2011, A1). Acting expeditiously, the Council
passed Resolution 1973 under its Chapter VII, Article 42 authority to act with armed
force when "measures provided for in Article 41 would be inadequate or have proved to
be inadequate." Again, the Council demanded, "the immediate establishment of a ceasefire and a complete end to violence and all attacks against, and abuses of, civilians." The
demand this time however was backed up with a no-fly zone and other sanctions.
While the United States had voted for Resolution 1973, President Obama and,
especially, Secretary of Defense Robert Gates, were not enthusiastic (ibid.). However,
the president changed his mind a week later and ordered US forces to participate in the
enforcement of the no-fly zone on 19 March 2011 (Obama 2011). The fighting continued
10
until 20 October 2011, when the city of Sirte, Gaddafi's hometown, was finally subdued
and Gaddafi himself was killed.
In sum, like the small, unicameral, committee-of-the-whole Second Continental
Congress, the small, unicameral, committee-of-the-whole United Nations Security
Council represents the appropriate size and organization for an assembly charged with the
Declare War Function. As for President Obama, once he had exercised his royal
prerogative and decided to initiate Operation Odyssey Dawn on 19 March 2011, he had
to turn his attention momentarily to the 112th Congress.
President Obama
President Obama's role in the travails of the 112th Congress is of little interest or
importance. Speaker Clay's dictum established the president's role as only a "duty to
recommend such measures as he shall judge necessary and expedient" to the Congress.
The clear implication of the dictum is that the president has no role to play whensoever
he has no recommendations to make. The War Powers Resolution of 1973 implies the
same non-role. According to the Resolution, the president's role is to "consult with
Congress before introducing United States Armed Forces into hostilities or into situations
where imminent involvement in hostilities is clearly indicated by the circumstances." In
compliance with the War Powers Resolution of 1973, President Obama "consulted" with
the 112th Congress and advised it that he was not "introducing United States Armed
Forces into hostilities or into situations where imminent involvement in hostilities is
clearly indicated by the circumstances." More fully, the president's "consultation" was
contained in a 21 March 2011 letter to the Speaker of the House and the President of the
Senate. After explaining the Libyan situation and American participation in the no-fly
operation, his letter concluded as have many previous letters by many previous presidents
that, "I am providing this report as part of my efforts to keep the Congress fully informed,
consistent with the War Powers Resolution. I appreciate the support of the Congress in
this action" (Obama 2011).
To bolster his non-recommendation, ten days later, on the most appropriate date
of 1 April 2011, the Department of Justice, Office of Legal Counsel issued a full legal
memorandum that concluded:
AUTHORITY TO USE MILITARY FORCE IN LIBYA
The President had the constitutional authority to direct the use of military force in
Libya because he could reasonably determine that such use of force was in the
national interest.
Prior congressional approval was not constitutionally required to use military
force in the limited operations under consideration (Department of Justice 2011.
See also Grimmett 2012).
The tone and substance of the Office of Legal Counsel's tu quoque argument is captured
in one of its many parenthetical comments:
(noting that "[t]he scope and limits" of Congress’s power to declare war "are not
well defined by constitutional text, case law, or statute," but the relationship
11
between that power and the President’s authority as Commander in Chief and
Chief Executive has been instead "clarified by 200 years of practice") (ibid.).
With this report, President Obama had in fact complied with the "200 years of practice"
of all presidents "to keep the Congress fully informed." President Obama subsequently
submitted an update report on 20 May 2011 and a more general letter to the majority and
minority congressional leadership on 15 June 2011. Although he neglected to say so,
President Obama would have done well to have repeated Alexander Hamilton's
suggestion concerning the congressional power "to declare war," "The Legislature,
Hamilton opined in 1793, "is free to perform its own duties according to its own sense of
them" and to have wished the 112th Congress well (1961-1987, XV: 42).
The 112th Congress
But of course Hamilton was wrong. The Congress is not free "to declare war" according
to its own sense of its own duties because it has no sense of what its non-legislative
duties might be or how to discharge them. Without even thinking of declaring war, even
the passage of an hortatory and precatory "authorization of force" resolution is beyond
the congressional imagination without active and forceful presidential leadership. Only
with presidential leadership and agenda setting is even this gesture possible. For
example, by September 2002, President George W. Bush had made his decision to invade
Iraq. In preparation for the actual invasion in March 2003, he ordered the White House
staff to draft a Joint Resolution "To authorize the use of United States Armed Forces
against Iraq." This White House written resolution was sent into House of
Representatives on Thursday, 19 September 2002, introduced simultaneously into both
chambers on Wednesday, 2 October 2002, and passed on Friday, 11 October 2002 (White
House 2002). As can be seen, a presidential decision to exercise his royal prerogative "to
declare war" lead to a presidential "recommendation," and efficient congressional
compliance. Presidential leadership and agenda setting eliminated all confusion over
congressional functions by simply usurping the congressional power "to declare war" and
steamrolled the organizational complxity of the Congress by 1) minimizing the collective
action problems, 2) all but eliminating transaction costs, and 3) greatly facilitating the
coordination of shared interests. After all, the threat of being accused of "not supporting
our troops during wartime" three weeks before mid-term elections coordinates the
members' shared interests wonderfully.
In brutal contrast, left to its own devices without presidential leadership, the
Congress is completely unable to accomplish even the hortatory and precatory gesture of
"authorizing" the president to do that which he has already decided to do. Consider the
matter in detail: For the 2011 Libyan operation, the War Powers Resolution tied the
hands of the 112th Congress until 23 May 2011, the date on which the Resolution's sixtyday grace period expired. With expiration, what might be called a rash of activity burst
forth, which lasted until 26 June 2011 (See also Grimmett 2012, 11-14). The anti-climax
of this dysfunctional activity occurred on 3 June 2011 with the passage in the House of
Speaker John Boehner's House Resolution 292. This triumph of congressional initiative
was, nonetheless, short lived as the resolution was immediately tabled for
reconsideration. This rash of activity may be tabulated as follows (Unless noted, all the
resolutions died in committee.):
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I. Five Concurrent Resolutions without the force of law that were introduced but not
passed.
Representative Dennis Kucinich
On 23 May 2011, House Concurrent Resolution 51: Directing the President,
pursuant to section 5(c) of the War Powers Resolution, to remove the United
States Armed Forces from Libya. (Defeated on 3 June 2011, 148 yeas to 265
nays)
Representative Scott Garrett
On 24 May 2011, House Concurrent Resolution 53: Declaring that the
President has exceeded his authority under the War Powers Resolution as it
pertains to the ongoing military engagement in Libya.
Representative Thomas Rooney
On 31 May 2011, House Concurrent Resolution 32: Expressing the sense of
Congress that the President should adhere to the War Powers Resolution and
obtain specific statutory authorization for the use of United States Armed
Forces in Libya.
On 1 June 2011, House Concurrent Resolution 57: Expressing the sense of
Congress that the President is in violation of the War Powers Resolution
regarding the use of United States Armed Forces in Libya, and for other
purposes.
On 22 June 2011, House Resolution 2278: To limit the use of funds
appropriated to the Department of Defense for United States Armed Forces in
support of North Atlantic Treaty Organization Operation Unified Protector
with respect to Libya, unless otherwise specifically authorized by law.
(Defeated on 24 June 2011, 180 yeas to 238 nays)
II. Six Joint Resolutions with the force of law that were introduced but did not pass.
Senator Paul Rand
On 23 May 2011, Senate Joint Resolution 14: A joint resolution declaring that
the President has exceeded his authority under the War Powers Resolution as
it pertains to the ongoing military engagement in Libya.
On 24 May 2011, Senate Joint Resolution 16: A joint resolution declaring that
the President has exceeded his authority under the War Powers Resolution as
it pertains to the ongoing military engagement in Libya.
Senator John Kerry
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On 21 June 2011, Senate Joint Resolution 20: A joint resolution authorizing
the limited use of the United States Armed Forces in support of the NATO
mission in Libya.
Representative Alcee Hastings
On 21 June 2011. House Joint Resolution 67: Authorizing the limited use of
the United States Armed Forces in support of the NATO mission in Libya.
On 21 June 2011. House Joint Resolution 68: Authorizing the limited use of
the United States Armed Forces in support of the NATO mission in Libya.
(Defeated on 24 June 2011, 123 yeas to 295 nays)
Representative Adam Smith
On 26 June 2011, House Joint Resolution 74: Authorizing the limited use of
the United States Armed Forces in support of the NATO mission in Libya.
III. House Resolution without the force of law that was introduced and passed, but
immediately laid on the table for reconsideration.
Representative John Boehner
On 2 June 2011, House Resolution 292: Declaring that the President shall not
deploy, establish, or maintain the presence of units and members of the United
States Armed Forces on the ground in Libya, and for other purposes. (Passed
on 3 June 2011, 268 Yeas to 145 nays, laid on the table for reconsideration)
The point that cannot be over emphasized is that the constitutional responsibility of the
Congress is not to "direct" the president, or to "express" the sense of the Congress, or to
"authorize" the limited use of the Armed Forces. Nor is it the constitutional
responsibility of the Congress to "declare" that the president has exceeded his authority.
If the president has exceeded his authority as commander-in-chief, the responsibility of
the Congress is to impeach him. Instead of all these non-constitutional activities, the true
and primary constitutional responsibility of the Congress as the legislative branch of
government is to make the nation's laws. To imagine that the legislative branch can
exercise the nation's fœderative power "to declare war" leads nowhere and has led
nowhere for over two hundred years, because, to repeat, the power "to declare war" is not
a legislative function or power. It is a fœderative function or power.
Still, having ignored this fundamental principle for over two hundred years, one
must acknowledge that, from a counter-normative, value-neutral, positive perspective, the
twelve resolutions do contribute positively to the domestic game of politics. None of the
twelve resolutions do anything to restrain the president's royal prerogative to wage war,
as Howell and Pavehouse have documented. But, a close examination reveals that the
twelve resolutions capture the full spectrum of possible negative reactions to President
Obama's decision. More to the point, some statistically significant proportion of the
general public held one or more of these negative opinions. As representatives of these
various constituencies, the members of the House in particular had a very real political
responsibility to give voice these diverse negative opinions, a responsibility which they
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discharged admirably by introducing the twelve uncoordinated, diverse, scattershot
resolutions.
Yet, from a normative perspective, one needs to contrast the twelve uncoordinated
resolutions of the 112th Congress, not with George W. Bush's White-House drafted
hortatory and precatory resolution "authorizing" the 2003 war in Iraq, but with either the
Second Continental Congress's Declaration of Independence or the Security Council's
Resolution 1973. In the small, unicameral, committee-of-the-whole Second Continental
Congress or Security Council, the resolutions introduced are few in number, and they are
introduced only when passage is likely. Frivolous uncoordinated resolutions unlikely to
pass are all but excluded because of the restrains imposed by the committee-of-the-whole
structure. No member of such assemblies wants to waste time on resolutions that do not
have a good chance of passage. More to the point, such resolutions will not be seconded.
In sharp contrast, devoting time on frivolous, uncoordinated resolutions is not an
issue in the large, bicameral, standing-committee Congress, as the 112th Congress has
demonstrated once again. Indeed, it constitutes a major, politically important activity.
First, because the Congress is bicameral, frivolous resolutions introduced in one chamber
cause no problems or consternation in the other chamber, which simply ignores them.
Second, because the Congress is organized into standing committees, frivolous
resolutions seldom make it to the other chamber. A member introduces the resolution, a
few short speeches are made, and the resolution is shunted off into one of the standing
committees never to see the light of day again. But, again, this is only to highlight the
organizational incapacity and functional mal-adaption of the large, bicameral, standingcommittee Congress to exercise the fœderative powers of the nation.
To drive the point home one last time, consider these two incapacities in further
detail: In terms of organizational incapacity, the initial problem is the bicameral structure
of the Congress. Each chamber starts off in its own direction, and the two never meet.
This, of course, is the point of Speaker Clay's dictum and the "consultation" requirement
of the War Powers Resolution, both of which attempt to force the president to provide the
necessary simultaneity, agenda setting, and leadership that leads to coordinated
congressional action. When the president writes the text, submits it to both chambers
simultaneously, and supports it strongly, the bicameral structure of the Congress is
effectively circumvented, as Speaker Clay realized. Naturally, when the president is
disinclined to seek congressional action, he withdraws his text writing, his agenda setting,
and his leadership, and thereby condemns the Congress to producing uncoordinated,
scattershot resolutions, such as the twelve produced by the 112th Congress. In a small
unicameral assembly, this cannot happen. A member stands up in the committee-of-thewhole and introduces the premise of his resolution, which is seconded and immediately
debated by the whole assembly.
A secondary manifestation of this problem is that a handful of members are
active--six representatives and two senators--but the Congress as a whole ignores these
scattered initiatives. The other members are too busy discharging their standingcommittee and other legislative responsibilities to pay more than passing attention to
twelve uncoordinated, unsupported resolutions that have no hope of passage. As a result,
the House fusses around with resolutions that mostly lack the force of law. And, just to
confuse matters more, the premises of the resolutions are diverse and incompatible with
no obvious way to sort through the bicameral jumble. Then, there are the insurmountable
15
transaction costs of the standing committees. Senator Kerry's Senate Joint Resolution 20
was the only resolution to have a full hearing and a full report (Senate Report 112-27).
But Senator Kerry was the Chair of Committee on Foreign Relations, so this is to be
expected. Critically, though, his resolution never made it to the floor of the Senate, much
less the House. Speaker Boehner's House Resolution 292 sailed through the House in
two days, but it lacked the force of law, and was immediately laid on the table for
reconsideration, which is the same as to say it died aborning.
The hard cold fact of the matter is that without the president to make the initial
decision, to set the agenda, and to provide both the actual text of the resolution as well as
the necessary leadership, the large, bicameral, majority-ruled United States Congress
with its standing committee rules is simply not organized discharge any of the nation's
fœderative functions, including the power "to declare war." The small, unicameral
Second Continental Congress and Security Council are so organized. They are enabled to
discharge fœderative functions because their unicameral structure, limited membership,
and committee-of-the-whole rules minimize 1) their collective action problems, 2) their
transaction costs, and 3) their difficulties in coordinating shared interests.
Organizational incapacity, however, is only half the story. Functional confusion
is the other, more fundamental, half. The commonest of common sense dictates that any
organization should devote the bulk of its time and effort on its primary function, the
function it is designed to fulfill. No organization should devote large amounts of time
and effort to functions it is not designed to fulfill. This, needless to say, is precisely what
the members of the 112th Congress did during the spring and early summer of 2011.
While Libyans were overthrowing Gaddafi, the members of the 112th Congress
were busy discharging their primary function--debating and passing domestic legislation.
In particular, the 112th Congress spent an enormous amount of time and effort debating
the federal budget, wrangling over cuts to it, and threatening to shut down the
government if the cuts sought by the Republican members were not made. Stopgap
funding measures were passed on 2 and 17 March 2011 after huge expenditures of time
and energy. A final stopgap budget passed on 8 April 2011 to fund the Federal
government through September and the end of the fiscal year, again after using up
massive amounts of time and effort. Almost $40 billion in cuts were the price extracted
for this agreement. Simultaneously a so-called "Gang of Six" was impaneled to report
back in July with a "solution" to the deficit problem. Among many other energy
absorbing domestic initiatives, Representative Paul Ryan proposed a radically downsized
federal budget, including an even more radical overhaul of Medicare and Medicaid.
Many members were also preoccupied with President Obama's birth certificate, and
whether he was born in Hawai'i or Kenya. The 2012 elections also preoccupied the
members, the first Republican presidential debate taking place in South Carolina on 6
May 2011, during the president's War-Powers grace period.
In fine, whatsoever one might think about President Obama's decision to support
the 2011 Libyan uprising, all can agree that the 112th Congress allocated its time and
effort properly. It spent a few hours during May and June demonstrating once again its
incapacity to discharge the nation's fœderative power "to declare war," and, then,
returned quickly to its primary function of debating domestic legislation.
16
Brien Hallett is an Associate Professor in the Matsunaga Institute for Peace at the
University of Hawai'i-Manoa. His book, Declaring War: Congress, the President, and
What the Constitution Does Not Say, is forthcoming from Cambridge University Press,
Fall 2012.
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