When President Barack Obama ordered military action against Muammar Qaddafi’s Libya in 2011, both Republicans and Democrats in Congress challenged his constitutional authority to do so.

On June 3 of that year, the House of Representatives voted on two resolutions challenging Obama’s unilateral action. One was sponsored by Rep. Dennis Kucinich (D-Ohio) and co-sponsored by Rep. Dan Burton (R-Ind.), along with four other Republicans. It simply directed Obama “to remove the United States Armed Forces from Libya by not later than the date that is 15 days after the date of the adoption of this concurrent resolution.”

The other resolution was sponsored by House Speaker John Boehner (R-Ohio). This resolution included these two findings: “(1) the President has not sought, and Congress has not provided, authorization for the introduction or continued involvement of the Armed Forces in Libya; and (2) Congress has the constitutional prerogative to withhold funding for any unauthorized use of the Armed Forces, including for unauthorized activities regarding Libya.”

The Kucinich-Burton resolution failed on a 148-265 vote. But 87 Republicans voted for it. The Boehner resolution passed on a 268-145 vote. Among House Republicans, 223 voted for it and only 10 voted against it.

Rep. Tim Scott (R.-S.C.) led the floor debate on this resolution for the House Republicans. “On March 9, 2011, President Obama ordered U.S. military intervention in Libya as part of a multinational coalition,” said Scott.

“Article 1 of our Constitution states that Congress, and only Congress, has the power to declare war,” said Scott. “This point was made in 2007 by then-Senator Barack Obama, who said: ‘The President does not have the power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual imminent threat to the Nation.’”

“It is not clear, it is simply not clear that Libya posed a threat to our Nation that justified the use of troops, the United States’ troops,” said Scott.

Rep. Jerrold Nadler (D-N.Y.), who voted for the Kucinich-Burton resolution, then joined Scott’s criticism of Obama’s action by plainly stating that a president of his own party had overstepped his constitutional authority.

“We are presented with a question of constitutional law and of the prerogatives of the United States Congress,” said Nadler. “Shall the president have the unfettered right to take this country to war without so much as a ‘by your leave’ from Congress as the King of England could do without authorization from Parliament? The authors of our Constitution answered that in the negative.”

Burton, who voted for Boehner’s resolution as well as his own, said: “The president does not have the constitutional authority to do what he did.”

“This was not approved by Congress, by the people,” Burton said.

“This is something that should not have happened, and it should never happen again,” he said.

Three weeks after the House held this debate, the Senate Foreign Relations Committee held a hearing on “Libya and War Powers.”

In his opening statement at that hearing, Sen. Richard Lugar (R.-Ind.), the ranking member of the committee, said that the hearing was called “to consider the legal and constitutional basis for ongoing United States military operations in Libya.

"The president declined to seek congressional authorization before initiating hostilities,” Lugar said of Obama.

“The Founders believed that presidents alone should not be trusted with warmaking authority, and they constructed checks against executive unilateralism,” said Lugar. “James Madison, in a 1797 letter to Thomas Jefferson, stated ‘The Constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care, vested the question of war in the legislature.’”

One of the witnesses at this hearing was Louis Fisher, a scholar at the Constitution Project, who had previously served as a specialist in the separation of powers for the Library of Congress. He is the author of “Presidential War Power,” a definitive book on the constitutional authority to use military force.

“Fundamental to the Constitution is the Framers’ determination that Congress alone can initiate and authorize war,” Fisher said in his prepared statement before the committee. “To secure the principle of self-government and popular sovereignty, the decision to take the country from a state of peace to a state of war is reserved to the elected Members of Congress.

"The Framers recognized,” Fisher said, “that the President could exercise defensive powers ‘to repel sudden attacks.’”

Here, Fisher was quoting from James Madison’s notes on the Constitutional Convention. Article 1, Section 8, Clause 11 of the final draft of the Constitution gave Congress the power: “To declare War, grant letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” The original draft of this provision would have given Congress the power to “make” rather than “declare” war.

“Mr. Madison and Mr. (Elbridge) Gerry moved to insert ‘declare,’ striking out ‘make’ war; leaving to the Executive the power to repel sudden attacks,” said Madison’s notes.

“Mr. (George) Mason was agst giving the power of war to the Executive, because not safely to be trusted with it,” said the notes, “or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war; but for facilitating peace. He preferred ‘declare’ to ‘make.’”

The convention agreed to this adjustment — thus, it gave Congress the power to declare war and left “to the Executive the power to repel sudden attacks.”

To demonstrate that President George Washington understood this power, Fisher in his book quotes from a letter Washington wrote in 1793 to William Moultrie, the governor of South Carolina.

“The Constitution vests the power of declaring War with Congress,” Washington wrote, “therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure.”

In the last two months, the U.S. military has carried out multiple strikes on drug-smuggling boats in the Caribbean and the Pacific. President Donald Trump might argue that these strikes are in fact repelling an attack — by stopping the flow of drugs that could kill Americans.

A better strategy would be to get Congress to specifically authorize the use of force against smuggling organizations bringing deadly drugs to this country.

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