Many conservatives and libertarians are asserting that President Obama violated the Constitution by not seeking a declaration of war before deploying American forces into Libya.  They are wrong.

Although the Constitution gives Congress the power to declare war, it does not prohibit a President from sending our armed forces into combat without a declaration of war.  The Constitution makes the President the Commander-in-Chief of the armed forces, and as such, he has the constitutional authority to deploy them as he will.  The Constitution gives the Congress the power of the purse, which is a significant check on the President's power to make war.  If Congress disapproves of a President's deployment of our armed forces, it can refuse to fund the mission or cut off funding at any time.

Our earliest presidents, some of whom participated in the drafting of the Constitution, sent American forces into combat without declarations of war on dozens of occasions.  In fact, the strictest of constitutionalists, President Thomas Jefferson, sent the US Marines to fight the Barbary Pirates without a declaration of war. 

Okay, but didn't President Obama violate the War Powers Act of 1973 by not consulting with Congress and obtaining a congressional resolution approving this action?  No.  The Act allows him to deploy troops into combat for up to sixty days without congressional approval.  More importantly, however, the President need not comply with the War Powers Act because the Act itself is unconstitutional.

As discussed above, the President is the Commander-in-Chief of the armed forces, and as such, he has the constitutional authority to deploy the armed forces in any manner he deems appropriate (which authority, again, is checked by the fact that Congress must approve the funding for any such deployment).  The right to deploy our armed forces is an inherent power of the President as the Executive Branch of the government.  The Legislative Branch does not have the power to place extraconstitutional limits on the inherent powers of the Executive Branch.  For example, if Congress passed a law that said that the President cannot veto any bill that was passed by Congress on a Tuesday, that law obviously would be unconstitutional, and the President would not need to feel compelled to comply with it.  Likewise, the limitations placed on the President's inherent powers as Commander-in-Chief of the armed forces are unconstitutional.

So, if the President is not required by either the Constitution or the War Powers Act to consult with Congress, does that mean that he was right not to consult with Congress?  No.  Although Obama was not legally required to consult with Congress, it was unwise for him not to do so.

As discussed above, Congress must approve funding for this mission, and the Congress will be more likely to grant the President's funding requests if the Members understand and feel like they were part of the decision to engage in this adventure.  Furthermore, although the President does not need a resolution of approval from Congress to take this action in Libya, if he had sought and obtained one, he would have enjoyed political cover if and when things go wrong - as they almost always do in combat in unforeseeable ways.  By acting alone, President Obama now owns the mission, for better or for worse.  If things do not go well, he will be an easy political target by Members of Congress who have no political investment in this mission.  And this vulnerability by the Commander-in-Chief also creates a vulnerability for the thousands of military personnel involved in the mission under his command.

For those reasons, President Obama should have consulted with Congress and should have sought a vote of confidence for the mission.  And it is still not too late for him to do so.