One issue and two words comprised the debate at Philadelphia's Constitutional Convention on August 17, 1787.
The Founders struggled with whether they should grant war authority to the legislature or the executive. And the Founders also wrestled with what verb they should use when entering into war: "make" or "declare."
Charles Pinckney of South Carolina worried about vesting war power with the legislature. Pinckney argued that legislative proceedings were "too slow" to respond to something as critical as war.
Meantime, Virginia's George Mason expressed concern about depositing war powers in the lap of the executive. Mason didn't think the executive branch could be "trusted" with such a broad prerogative.
Pierce Butler of South Carolina indicated the president would never "make war" unless the nation backed him.
Butler's use of the word "make" apparently caught the attention of Elbridge Gerry of Massachusetts and Virginia's James Madison. They moved to strike "make" and inserted "declare" instead. But Connecticut's Roger Sherman resisted Elbridge and Madison. Sherman fretted that the word "declare" narrowed "the power too much."
Finally, Oliver Ellsworth of Connecticut stated that "there is a material difference between the cases of making war and making peace. It should be more easy to get out of war than into it."
In the end, the Founders agreed to "declare." And in Article I, Section 8 of the Constitution, they granted Congress the power "to declare war." Right in between authorizing the legislative branch the ability "to end and punish Piracies and Felonies committed on the high Seas" and to write "Letters of Marque and Reprisal."
On March 2, Defense Secretary Robert Gates appeared at the witness table before a meeting of the House Defense Appropriations Subcommittee. Rep. Rodney Frelinghuysen (R-NJ) queried Gates about the chances of the U.S. patrolling a no-fly zone over Libya while simultaneously committed to Afghanistan and Iraq.
Gates minced no words about what a Libyan mission might require.
"A no-fly zone begins with an attack on Libya to destroy the air defenses. That's the way you do a no-fly zone. And then you can fly planes around the country and not worry about our guys being shot down," Gates replied. "It also requires more airplanes than you would find on a single aircraft carrier."
Frelinghuysen noted he wasn't "endorsing" that the U.S. implement a Libyan no-fly zone. But the New Jersey Republican worried that some factions in Africa could interpret what it takes to build a no-fly zone as "a war, aggressive action on our part."
Gates responded that up to that point, the United Nations had not authorized the use of force in Libya.
A few weeks later, the U.N. changed its tune when it came to a no-fly zone in Libya. And on Friday, President Obama summoned key Congressional leaders to the White House or had them dial in to brief them about U.S. involvement in Libya.
House Intelligence Committee Chairman Mike Rogers (R-MI) was one of the few lawmakers who attended the session in person. Afterwards, Rogers fully backed the action, describing it as a "support role." But Rogers added this caveat:
"If this is going to go long or if there is going to be a mission change, I think (the president) has to come back to Congress for an affirmative vote," Rogers said.
By Saturday, the U.S. had already lobbed more than 100 Tomahawk cruise missiles at targets near Tripoli and Misrata to help establish the no-fly zone. These Tomahawk missiles cost $600,000 apiece. Later, B-2 bombers and Harrier jets executed additional strikes on Libyan soil.
On Saturday afternoon, House Democrats convened a conference call with many expressing concern that the president didn't have the power to authorize such strikes without consulting Congress.
And by Sunday afternoon, it wasn't just Congressional Democrats who were skeptical about how the president involved the U.S.
"Before any further military commitments are made, the admnistration must do a better job of communicating to the American people and to Congress about our mission in Libya and how it will be achieved," said House Speaker John Boehner (R-OH).
"I am concerned that the use of military force in the absence of clear political objectives for our country risks entrenching the United States in a humanitarian mission whose scope and duration are not known at this point and cannot be controlled by us," said House Armed Services Committee Chairman Buck McKeon (R-CA) in a statement. "A United Nations' Security Council resolution is not and should not be confused for a political and military strategy."
Lawmakers typically lodge two types of reservations when the U.S. intervenes in conflicts like Libya.
For starters, liberals are usually concerned about whether the president, Democrat or Republican, is usurping the Constitution by deploying U.S. forces or other military assets overseas. Furthermore, Republicans express disquiet about whether the president is using the military the "right" way.
After last fall's purge at the polls, there are few moderate Democrats left in the House. Nearly all Democrats who remain are liberal. Thus, it's natural that those ranging from Reps. Dennis Kucinich (D-OH) to Jerry Nadler (D-NY) would express reservation about not only whether the U.S. should deploy the military but if the president followed the Constitution and the 1973 War Powers Resolution. The resolution requires the president to tell Congress within two days of commencing military action and prohibits the use of force for two months without a Congressional declaration of war.
But the electoral makeup of this Congress is a little different than in years past. Last November, voters dispatched dozens of conservative lawmakers to Washington with the backing of the tea party. Many of these newly-minted members ran on a platform of sticking strictly to the Constitution. Moreover, few of these lawmakers have yet to weigh in on any foreign policy issue at all. Nearly all of the debate in Washington this year has focused on spending and repealing the health care law.
So this begs an interesting question. After Friday's White House consultation, most Republicans were mum about the Libya operation.
But Sunday's comments from Boehner and McKeon suggested there was more than a little concern among Republicans. And no one quite knows where these new, conservative members will come down on this issue.
Rep. Steve King (R-IA) isn't a neophyte lawmaker. But he is one of the most conservative voices in the House and is closely aligned with the tea party movement. King says he favors the U.S. mission "if this is to be a limited engagement" and that he didn't "quibble with Obama not going to Congress." But King added he would have concerns if the operation expanded.
"Republicans don't want to handcuff the commander-in-chief but we have to be willing to handcuff the president," King said.
Which is precisely the crux of the Constitutional debate as to which branch of government has the power to "declare" war. And whether U.S. action in Libya constitutes "war."To hearken back to the debate at the Constitutional Convention, it's pretty clear in this case which branch of government "declared" it was going to intervene in Libya and which branch didn't have a say in the process.
That could stir up many of the constitutionalists on Capitol Hill because it runs afoul of Article I, Section 8.
There isn't too much out there on how the Congressional newcomers feel about this. On his website in November, Sen. Rand Paul (R-KY) stated that "when we must fight, we declare war as the Constitution mandates."
But perhaps an even more intriguing example of where freshmen could drive this debate rests with Rep. Justin Amash (R-MI). Amash has already made a name for himself on Capitol Hill by voting "present" on several issues this year. That's where a lawmaker votes, but doesn't weigh in with a "yea" or "nay."
Late last week, Amash took the rare step of casting back-to-back "present" votes on wildly diverse issues. One vote asked lawmakers whether they should yank federal dollars from NPR. The other resolution would have required the U.S. to withdraw from Afghanistan.
At the start of the year, Amash stated he would vote "present" if he supports a bill, but believes the legislation "uses improper means" to accomplish its goal and violates the Constitution.
"I took an oath to uphold the Constitution. I take that oath seriously and I consider the constitutional implications of every action I take as a representative in Congress," Amash said on his Facebook page.
On the NPR measure, Amash believed Congress was "picking one viewpoint over another." He suggested that violated the Constitution's equal protection clause. When it came to Afghanistan, Amash argued that the resolution was unconstitutional because it created a "legislative veto."
By Sunday night, Amash again invoked the Constitution over the president's decision to join the international effort against Libya.
"It's not enough for the president simply to explain military actions in Libya to the American people, after the fact, as though we are serfs," Amash wrote on Facebook. "When there is no imminent threat to our country, he cannot launch strikes without authorization from the American people, through our elected representatives in Congress. No United Nations resolution or Congressional act permits the president to circumvent the Constitution."
It will be interesting to see how many freshmen question this intervention on Constitutional grounds.In short, the debate over which branch of government can "declare" war dates back to that August day in 1787. And it's even murkier now than it was then.
Many of you have heard of Rod Serling and "The Twilight Zone." Fewer have heard of Supreme Court Justice Robert Jackson and the "zone of twilight." In a 1952 decision about presidential powers, Jackson wrote that "there is a zone of twilight" where the executive and legislative branches may have "concurrent authority, or in which its distribution is uncertain."
Jackson noted that presidential power plummets to "its lowest ebb when he takes measures incompatible with the expressed or implied will of Congress."
It's hard to assess what the "expressed or implied will of Congress" is on Libya. There are definitely concerns. And Congress certainly didn't "declare war" as prescribed by the Constitution.
Which is why the U.S. now resides in Jackson's "zone of twilight" when it comes to military action in Libya.