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Rep. John Conyers, Jr. (D-Mich.), Ranking Member of the House Judiciary Committee, today issued a following statement today calling for an immediate emergency session to debate the authorization of military force in Libya.

     “Article I, Section 8, clause 11 of the Constitution grants Congress – not the President – the power ‘to declare war,’ stated Conyers.  While the legislative and executive branches have long grappled over the exact division of powers in times of war, the Constitution grants sole authority to the Congress to commit the nation to battle in the first instance.  That decision is one of the most serious that we are called upon to make and we should never abdicate this responsibility to the President.  I therefore join my colleagues on both sides of the aisle in calling for an immediate session of Congress to review United States military engagement in Libya.”  Conyers also pointed to a line of legal precedent and history supporting this proposition.

     The courts have issued numerous opinions to the effect that under the Constitution. the President’s role is to conduct war that Congress has authorized.  As far back asLittle v. Barreme, 6 U.S.  (2 Cranch) 170 (1804), a case interpreting congressional authorization for the U.S. Navy to intercept ships bound for French ports, the Supreme Court ruled that interception of ship from a French port was illegal as it went beyond the use of military force that Congress had authorized.

     The seminal case of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) rejected the President’s claim that he had authority as Commander-in-Chief to unilaterally seize steel production plants.  Justice Douglas’ concurring opinion contained recognition of the importance of separation of powers during times of war: “All executive powers – from the reign of ancient kings to the rule of modern dictators – has the outward appearance of efficiency.  Legislative power, by contrast, is slower to exercise ...  We therefore cannot decide this case by determining which branch of government can deal most expeditiously with the present crisis.  The answer must depend on the allocation of powers under the Constitution.”  Id. at 629-630 (Douglas, J., concurring).

     There have also been a number of important lower court decisions expressing skepticism of unrestrained executive power concerning both the military action in Vietnam and the invasion of Cambodia.  In Mottola v. Nixon, District Court Judge Sweigert observed that a “strong case can be made for the proposition that compliance with the Constitution of the United States and its plain provision that the power to declare war lies, not in the President, but in the Congress. 318 F. Supp. 538, 553 (N.D. Cal. 1970).

     Similarly, in enjoining the Secretary of Defense from engaging in military actions in Cambodia, Judge Judd of the Second Circuit Court of Appeals stated in Holtzman v. Schlesinger that “there is no existing Congressional authority to order military forces into combat into Cambodia or to release bombs over Cambodia, and that military activities in Cambodia by American armed forces are unauthorized and unlawful.”  484 F.2d 1307, 1308 (2d Cir. 1973).

     In the same vein, the Founding Fathers were clear that the power to engage our troops in war should rest solely with the legislature:

• James Madison, one of the key architects of the Constitution on separation of powers, said that "this requirement for Congress to be able to declare war is one of the most important provisions of the Constitution."
• John Jay further explained that requiring legislative deliberation provided a critical check on the tendency of “absolute monarchs” to engage in wars “not sanctified by justice or the voice and interests of [their] people.”
• George Washington, who presided over the Constitutional Convention, explained ‘‘The Constitution vests the power of declaring war in Congress; therefore no expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure.’’
• Constitutional Convention delegate James Wilson echoed this view:  ‘‘This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power in declaring war is vested in the legislature at large.’’

     Rep. Conyers is also an original cosponsor of H. Con. Res. 31, which states that it is the sense of Congress that the President is required to obtain in advance specific statutory authorization for the use of United States Armed Forces in response to civil unrest in Libya.

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