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“Is the Libya war legal? Under the 1973 War Powers Resolution, it is not. President Obama has exceeded the 90-day period to receive retroactive authorization from Congress. But things are not so simple. No president should accept — and no president from Nixon on has accepted — the constitutionality of the WPR, passed unilaterally by Congress over a presidential veto. On the other hand, every president should have the constitutional decency to get some congressional approval when he takes the country to war. […] On Libya, Obama did nothing of the sort. He claimed exemption from the WPR on the grounds that America in Libya is not really engaged in “hostilities.” To deploy an excuse so transparently ridiculous isn’t just a show of contempt for Congress and for the intelligence of the American people. It manages additionally to undermine the presidency’s own war-making prerogatives by implicitly conceding that if the Libya war really did involve hostilities, the president would indeed be subject to the WPR. The worst of all possible worlds: Insult Congress, weaken the presidency. A neat trick. […] Moreover, the judiciary, which under our system is the ultimate arbiter of constitutionality, has consistently refused to adjudicate this “political question” (to quote one appellate court judge) and thus resolve with finality the separation-of-powers dispute between the other two co-equal branches.”
— By Charles Krauthammer, Published: June 23, 2011 (washingtonpost.com)
My fellow Americans, what we have here is — failure to adjudicate. We have had for decades, since the Korean War began, a contested Constitutional issue of the first magnitude. It concerns what is arguably the most important function of our Federal Government — to protect the Nation's security interests. Moreover, the issue involves all three Branches of our Federal Government: Executive; Legislative; and Judicial.
The last major war that the United States Congress declared, as is still prescribed by our Constitution, was World War II, which ended in 1945. Since then, we have engaged in a half dozen major wars and numerous minor wars, none of which were declared by Congress. The gentlemanly declaration of war has outgrown its intended purpose, as the whole world has completely abandoned the oxymoronic concept of a gentleman's war. To coin a phrase, war is hell, and hell is no place for gentlemen or ladies.
Modern warfare involves surprise attack, stealth, disregard for relatively humane treatment of non-combatants, and among the enemies of Western civilization the intention to eradicate it. The Geneva Conventions might as well be subsumed by the American Contract Bridge League. When Stalin was informed that Hitler had committed suicide while the Russian Armies were in the process of demolishing Berlin, he probably remarked, "Next time, no more Mr. Nice Guy!" But, I digress ...
The Constitution has been Amended (portions of the 20th Amendment and the 25th Amendment) when the original provisions for Presidential succession were deemed inadequate to the task. Similarly, the Constitution's war-making provisions, anti-war sentiments not withstanding, must be clarified after our more than two centuries of existence and our involvement in many wars that were necessitated by ever expanding exigencies of the world we share with billions of people in other nation states.
The time has come for a Constitutional Amendment to enable us to preserve, protect and defend the Constitution of the United States and the people obliged to live by the rule of law that derives from it.
Post 1,663 War Between the Branches
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