About That Senate Consent to War

Look, I don't think our war with Libya is unconstitutional. We have a long history of waging undeclared wars. There is natural tension between the president's powers of commander in chief to initiate military action and Congress' power to declare war. In between, you have Congressional power of the purse to restrain a president.

But the idea that our State Department is calling Senate Resolution No. 85 a war authorization document is ridiculous:

[The] State Department continues to wave around that Senate resolution (Resolution No. 85) in a disingenuous effort to claim Congress has authorized the war.

It is extremely ridiculous. For one thing, this isn't a treaty ratification. An authorisation for war must be voted for by both houses.

More ridiculous is that this resolution is clearly one of those sense of the Senate resolutions that gets passed routinely along with honoring some group in a Senator's state on their anniversary, congratulating the state high school basketball champions, and naming Broccoli Day for 2011. It was passed without a record roll call vote (by unanimous consent), indicating the symbolic nature of it rather than being a substantive resolution. You'd think the Congressional Research Service would have mentioned that authorization to use force angle in their skimpy summary.

Look, I wrote lots of these documents at the state level. I know the difference between a substantive resolution authorizing action on some issue and a feel-good resolution. S. Res. 85 is not an authorization to use force. And even if it was, the Senate alone has no authority to declare war apart from the House of Representatives.

This is weak, even for our State Department. Shame on them.

UPDATE: This so-called "fact check" says the Senate did signal its approval of a no-fly zones:

Some lawmakers are grousing loudly that President Barack Obama sent the nation's military to Libya without Congress' blessing.

They're ignoring a key fact: The Senate a month ago voted to support imposing a no-fly zone to protect civilians from attacks by Col. Moammar Gadhafi's forces.

Even ignoring the non-substantive nature of the resolution as indicated by the lack of a record roll call vote and the fact that even Senate approval alone would not indicate Congressional authorization for war, the resolution signalled Senate approval of support for (oops, I need to correct that) a "no-fly zone." A no-fly zone means we patrol the air and don't allow Libyan planes to fly within it. Indeed, so little impact would that have had that I opposed the idea as purely symbolic.

We are bombing the heck out of Libya. Not that I'm against that (I'm against pointless bombing--shall we try to win?).

What we have here is a war and not a no-fly zone. That's the key fact in question. AP is flat wrong, given that defenders of the president's actions are portraying S.Res. 85 as a green light for war.

UPDATE: Amazingly, it gets worse (Tip to Instapundit). The version passed was substituted from an obviously symbolic resolution, and Senators didn't see the passed version until the day after it passed. Although, as I wrote above, you can't say we were lied into war by this resolution because it does not authorize what we are doing. And even if it purported to do that, it could not because the Senate does not speak for the entire Congress. How pathetic was it for the President's supporters to engineer this kind of pointless fraud? This is worse than the Tonkin Gulf resolution because in this case the resolution itself is a phantom. Although there was bait and switch involved, after the administration talked about a no-fly zone for weeks, and then engineered a no-fly-plus-ground-attack zone at the UN Security Council.