War Powers and Libya: Congress Is Entitled to Restrain the President

When it comes to U.S. involvement in Libya, the Obama administration has made a mess in dealing with its obligations under the War Powers Resolution (WPR), a law designed to check the president’s ability to commit America to war without the consent of Congress. Before I read the unsigned statement that President Barack Obama sent to Congress under the bland heading, “United States Activities in Libya,” I was prepared to give the president and his legal team the benefit of the doubt.

But his embarrassingly thin legal analysis is a constitutional joke. It calls into question the constitutional competence of those members of his divided legal team who concluded that the president is entitled to go it alone in Libya without further Congressional authorization.

Here is an excerpt of the statement: 

The President is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of “hostilities” contemplated by the Resolution’s 60 day termination provision [that provision states that the president can engage in war for 60 days without Congressional authorization]. U.S. forces are playing a constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited to the terms of the United Nations Security Council Resolution that authorized the use of force solely to protect civilians and civilian populated areas under attack or threat of attack and to enforce a no-fly zone and an arms embargo. U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.

There are two ways to deal with this effort to justify the president’s actions in Libya. The first asks whether the actions comply with the WPR. The second asks whether that resolution (which became a law after Vietnam over the veto of President Richard Nixon) is consistent with the requirements of the Constitution.

On its own terms, the president’s statement is, as I said, a constitutional joke. At no time does it give any account of what the critical term “hostilities” means, except to say that whatever its meaning, it constitutes a high threshold that is not met in Libya. The trusty thesaurus offers the word “fighting” as a synonym for “hostilities,” which is just what we are doing in Libya today. So why is the president playing games with the War Powers Act? And should he be doing this? I respond in my weekly column for the Hoover Institution’s Defining Ideas. 

  1. Scott Klappenbach

    It seems obvious that the President is evading Congressional authorization because that would necessitate a statement of the ultimate goals of the mission of which he hasn’t a clue. (One imagines that after Obama signed on to the project, he had the same feeling Anthony Weiner had after hitting ‘send’ on his Facebook picture.) It would seem that going to Congress would be a win/win for Obama as it could give him an ‘out’ if Congress disapproved.

  2. Ken Sweeney

    The Obama Presidency now just plain sad and incompetent.  As an accredited “constitutional scholar” making paper thin legal arguments, this makes the University of Chicago look like it’s a part of the Daley crony Chicago machine.

    Presumably, this is just the political expediency of “hope and change,” and not fumbled legalistic reasoning.

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