[Congressional Record Volume 157, Number 45 (Thursday, March 31, 2011)]
[House]
[Pages H2111-H2112]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          THE ATTACK ON LIBYA

  The SPEAKER pro tempore. The Chair recognizes the gentleman from 
California (Mr. McClintock) for 5 minutes.
  Mr. McCLINTOCK. Madam Speaker, when the President ordered the attack 
on Libya without congressional authorization, he crossed a very bright 
constitutional line that he, himself, recognized in 2007 when he told 
the Boston Globe, ``The President does not have power under the 
Constitution to unilaterally authorize a military attack in a situation 
that does not involve stopping an actual or imminent threat to the 
Nation.''
  The reason the American Founders reserved the question of war to the 
Congress was that they wanted to assure that so momentous a decision 
could not be made by a single individual. They had watched European 
kings plunge their nations into bloody and debilitating wars over 
centuries, and they wanted to avoid that terrible fate for the American 
Republic.
  The most fatal and consequential decision a Nation can make is to go 
to war, and the American Founders wanted that decision made by all the 
representatives of the people after careful deliberation. Only when 
Congress has made that fateful decision does it fall to the President 
as Commander in Chief to command our Armed Forces in that war.
  The authors of the Constitution were explicit on this point. In 
Federalist 69, Alexander Hamilton drew a sharp distinction between the 
American President's authority as Commander in Chief, which he said 
``would amount to nothing more than the supreme command and direction 
of the military and naval forces'' and that of the British king who 
could actually declare war.
  To contend that the President has the legal authority to commit an 
act of war without congressional approval requires ignoring every word 
the Constitution's authors said on this subject--and they said quite a 
lot.
  There seems to be a widespread misconception that under the War 
Powers Act the President may order any attack on any country he wants 
for 60 days without congressional approval. That is completely false.
  The War Powers Act is clear and unambiguous: The President may only 
order our Armed Forces into hostilities under three very specific 
conditions. Quoting directly from the act: ``One, a declaration of war; 
two, specific statutory authorization; or, three, a national emergency 
created by attack upon the United States, its territories or 
possessions, or its Armed Forces.''
  Only if one of these conditions is present can the President then 
invoke the War Powers Act. None are present, none are alleged to have 
been present, and, thus, the President is in direct violation of that 
act.
  The United Nations Participation Act requires specific congressional 
authorization before American forces are ordered into hostilities in 
United Nations actions. The North Atlantic Treaty clearly requires 
troops under NATO command to be deployed in accordance with their own 
country's constitutional provisions. The War Powers Act specifically 
forbids inferring from any treaty the power to order American forces 
into hostilities without specific congressional authorization.
  The only conclusion we can make is that this was an illegal and 
unconstitutional act of the highest significance.
  The President has implied that he didn't have the time for 
congressional authorization to avert a humanitarian disaster in Libya. 
Well, he had plenty of time to get a resolution from the United 
Nations, and I would remind him that just a day after the unprovoked 
bombing of Pearl Harbor, Franklin Roosevelt appeared in this very 
Chamber to request and receive congressional authorization.
  Some have said that the President can do whatever he wishes and that 
Congress' authority is limited to cutting off funds. The war is not a 
one-sided act that can be turned on and off with congressional funding. 
Once any Nation commits an act of war against another, from that moment 
on it is at war. It is inextricably embroiled and entangled with an 
aggrieved and belligerent party that has casus belli to prosecute 
hostilities regardless of what Congress then decides.
  Finally, I've heard it said, well, we did the same thing in Kosovo. 
If that is the case, then shame on the Congress that tolerated it, and 
shame on us if we allow this act to stand unchallenged any longer.

[[Page H2112]]

  This matter strikes at the heart of our Constitution. If this act is 
allowed to stand, it will fundamentally change the entire character of 
the legislative and executive functions on the most momentous decision 
that any Nation can make. It will take us down a dark and bloody road 
that the American Founders fought so hard to avoid.

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