Most legal scholars agree that the nation’s founders intended to separate the power to decide to initiate a war from the power to carry it out. But ever since the Korean War, presidents of both parties have ordered military action without Congressional authorization.I am glad that the Rands père et fils and some other congresscreatures are questioning Th'Obama's executive action here, but I find these appeals to the Constitution as a sort of biblical font of moral virtue--Is it right? Is it just? Let's ask the CONSTITUTION!--to be basically preposterous. Like, I sit on the board of a little non-profit in Pittsburgh, and if I take to the rooftop and start picking off employees of the non-profit down the street with a high-powered rifle, the question will not be whether or not I properly called the question under the bylaws. This sort of proceduralism is all fine and well, but it obscures the larger question of whoever gave any of us the authority to go kill people, regardless of the political and philosophical affinities we may believe ourselves to have with one or other faction in a conflict. It is very easy to be lulled by the assumed democratic aspirations of the Libyan rebels, but this seems to lead some to presume that America is not Alden Pyle, but Robert Jordan--perhaps a distinction without a difference, since both of them, in the end, and horribly for everyone, failed.
The divergence between presidential practice for the past 60 years and the text and history of the Constitution makes it hard to say whether such action is lawful, scholars say. “There’s no more dramatic example of the ‘living Constitution’ than in this area,” said David Golove, a New York University law professor