Although John Boehner, speaker of the House of Representatives, laudably sent a recent letter to President Barack Obama suggesting the possibility of a violation of the War Powers Resolution in the attack on Libya, he was 90 days too late.
Obama’s violation did not occur this past weekend, but when the first American aircraft attacked Libya.
The War Powers Resolution (WPR)—passed in 1973 to rein in Richard Nixon’s executive excesses in war-making and reassert the primacy of congressional war powers as stipulated in the U.S. Constitution—has a requirement that the president withdraw U.S. forces from hostilities within 60 days (90 days if the president certifies that troop safety is at risk) unless Congress has declared war or has specifically authorized by law U.S. participation in the conflict.
This provision has been argued over by the Obama administration, Boehner, other members of Congress, and the media. The problem is that this provision of the WPR doesn’t apply to the attack on Libya.
Right up front in the WPR is a provision titled “Presidential executive power as commander-in-chief; limitation,” which is very clear:
The constitutional powers of the president as commander-in-chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only [author’s emphasis] pursuant to:
- a declaration of war,
- specific statutory authorization, or
- a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
Thus, since the 60/90-day sunset period only applies when no prior congressional declaration of war or statutory authorization for U.S. participation in a conflict has been passed, it must apply only when there has been an attack on the United States or its armed forces.
The WPR is merely trying to implement the clear intent of the Constitution’s framers at the Constitutional Convention in 1787. They allowed for executive war-making only when the nation was under imminent threat of attack; even in these cases of emergency self-defense, the framers expected the president to ask Congress for a declaration of war at the earliest practical time. For all other military actions—that is, for offensive attacks not involving self-defense—a declaration of war was required before initiating hostilities.
As a constitutional law professor, Obama clearly knows the founders’ intent, and, before becoming president, he made statements to that effect. As a candidate for president in 2007, Obama got it right: “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” How times have changed!
The framers’ intent was largely followed until President Harry S. Truman called the Korean War a “police action” and violated the Constitution by not asking Congress for a declaration of war. Since then, by allowing the president to usurp their war powers, members of Congress have found that they don’t have to take politically perilous stances on whether the United States should be letting its sons and daughters die in foreign wars.
So the 60/90-day sunset provision only applies when the president commits forces for self-defense during a national emergency—for example, after the 9/11 attacks, had the Congress not authorized military action against al-Qaeda and those that harbored the group, the sunset provision would have applied to U.S. military actions in the “war on terror.” In the assault on Libya, not only did Libya not first attack the United States, it was not even a threat to the U.S. or its vital interests.
By focusing on the 60/90-day sunset provision, however, the Republicans have painted themselves into a corner. Obama has said that this provision does not apply because current operations in Libya don’t rise to the level of “hostilities”—that is, the U.S., after leading the dangerous portion of the mission, the destruction of Libyan air defenses, has now turned the turkey shoot on Libyan ground targets over to the NATO allies and is now merely acting in a support role. (Even this excuse is ridiculous, because the U.S. is still striking with drones to help its allies attack ground targets.)
It would be much more difficult for Obama to argue that the war, in its most intense initial phase, didn’t rise to the level of “hostilities.” But the Republicans have forfeited the stronger argument that any offensive attack on Libya needed prior congressional authorization and have put all of their marbles on the aforementioned inapplicable sunset provision. Thus, the Republican critique of the president has no legal basis. This bungling will undoubtedly help perpetuate the fiction that the president, absent an attack on U.S. territory or forces, has the power to create a fait accompli by introducing troops into a foreign country for 60 to 90 days without congressional approval.
More important, in a republic, constitutionally enumerated legislative war powers and restrictive laws such as the WPR are about preventing leaders from tyrannically conducting wars of aggrandizement without approval by the people’s houses rather than about keeping armed forces away from dangerous hostilities. It is clear that the framers and Congress, respectively, wanted congressional approval of military action even under conditions of limited violence. For example, the WPR applies “to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances. . . .” It then defines “introduction of United States Armed Forces” to include “the assignment of members of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities.” In Libya, even in their reduced supporting role, U.S. forces are clearly coordinating with and accompanying the forces of NATO allies in violation of the WPR.
Yet, Obama—the hypocritical law professor and expert in legal legerdemain, who went against the opinions of the top lawyers at the Department of Defense and the Justice Department’s Office of Legal Counsel on whether he needed to get congressional approval for the Libyan mission—is unlikely to be reined in by timid Republican bunglers who cannot, or choose not, to read the plain meaning of the Constitution and the War Powers Resolution. In conclusion, the Republicans should revamp and strengthen their legal objection to Obama’s war in Libya and vote to cut off funding for the adventure.
The Independent Institute