It’s charming to see ultra-conservative Mark Levin rush to Obama’s defense, against charges that the war in Libya was started illegally. And equally satisfying to see him get the justification so very wrong. Says Mark Levin, declarations of war are mere formalities, which can be dispensed with unless (and until) you need money to run the war:
When members of Congress vote to fund [non-defensive military action], they are giving their formal, official consent to the operations. More than voting to declare war, they are actually voting to fund war — all kinds of war. [. . .] The declarations were not used as constitutional requisites for war, but to rally the nation and assert our resolve. But once Congress has funded a military operation, and it funds virtually all of them, it is undoubtedly helping to make war for without the funds there can be no war.
This is a bridge too far, and makes a nullity of the textual requirement that Congress, and only Congress, can “declare” war. We’re presented with two textual commands on the subject of war. First, the President is the Commander in Chief of the armed forces. This is a dead letter unless the President can turn on a dime without congressional say-so, to protect the United States or seize an important military opportunity. Second, we’re told that Congress alone can declare war. This affirmative grant of exclusive authority cannot reduce to nothing more than a restatement of Congress’ power to allocate funds. Neither courts nor commentators ever adopt a view of the Constitution that renders important language redundant.
Any meaningful analysis of the President’s war powers must be a synthesis of the two. I (and most reasonable persons) combine the two provisions to conclude that the President can engage in short-term military action, or deploy forces without starting a shooting war, but the President needs Congress’ permission to bring the nation into an extended actual conflict. History supports this view: World War II was declared (Levin’s handwaving notwithstanding), and so was the “war on terror.” But the Cold War was not. Nor was Jefferson’s Tripoli action.
The Obama Administration has adopted the sensible middle ground on war powers, nothing more. We shouldn’t flip out; our enemies shouldn’t rejoice; and we should note that, yet again, the President has proved to the American people that he is neither the ideologue nor the weakling his opponents believe him to be.