Libya and the War Powers Abdication
By John C. Yoo and Robert J. Delahunty, The Wall Street Journal
The clock is running out on President Barack Obama's military adventure in Libya. Today his campaign of pinprick air strikes and half-hearted support for the rebels will run smack into the War Powers Resolution. The law, passed in 1973, requires that the president withdraw U.S. forces from hostilities after 60 days unless he secures Congress's approval or a formal declaration of war.
In the depths of the Vietnam War and Watergate era, a Democratic Congress enacted the War Powers Resolution over Richard Nixon's veto. On the positive side, it recognizes that the president may constitutionally introduce armed forces into potential or actual hostilities. Nothing remarkable there: For over two centuries, presidents have deployed our armed forces into conflicts large and small without congressional approval.
But the resolution veers into unconstitutional ground by limiting the president's unilateral ability to continue military operations beyond 60 days.
The law, hailed as an overdue exercise of Congress's war powers, instantly became a liberal icon against the "imperial presidency." Yet when Democrats control the White House, they tend to see things much as Nixon did. President Bill Clinton didn't bother to get prior legislative permission for his Kosovo war and sidestepped the War Powers Resolution thereafter. And Mr. Obama hasn't lifted a finger in the last two months to get Congress's consent for his Libyan operation.
When Mr. Obama first announced the Libyan intervention along with our NATO allies, he claimed constitutional authority as chief executive and commander in chief and said he was acting "consistent with" the War Powers Resolution. Congress has shown no interest in authorizing our limited military operations, nor has it provided any funding. At this point, if the president were to seek approval, Congress would likely refuse.
Mr. Obama has only himself and his party to blame for this state of affairs. As liberal politicians and academics read the Constitution, Congress's power to "declare war" requires legislative approval before presidents can use force abroad. Candidate Obama represented the Democratic consensus when he told the Boston Globe in December 2007: "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."
Indeed, invoking a single concurring opinion by Supreme Court Justice Robert Jackson in a Korean War case (Youngstown Sheet and Tube v. Sawyer, 1952), liberals have argued that a "National Security Constitution" gives Congress the power to override the president's wartime decisions. They used to enjoy filing lawsuits against Republican presidents and their wartime decisions or assaulting them in the nation's editorial pages and airwaves for acting "above the law." If American forces over Libya do not stand down today, the administration would be directly violating the Constitution as understood by Mr. Obama.
President Clinton faced a similar problem. No act of Congress had authorized war against Serbia, a sovereign nation that had not harmed or threatened us in any way. Congress voted down both a declaration of war and a statute approving hostilities. Mr. Clinton tried to "save" the War Powers Resolution deadline by claiming that a supplemental appropriations bill that specifically funded Kosovo costs had implicitly extended the 60-day clock.
Mr. Obama has no handy escape route. Attorney General Eric Holder's Justice Department is arguing that the War Powers Resolution doesn't apply because the Libyan intervention is too "small" to constitute a "war" under the Constitution. This will come as a surprise to Moammar Gadhafi, who has escaped several attempts on his life, not to mention the Libyans killed by U.S. strikes. The Constitution makes no distinction between "big" wars that require congressional approval and "small" wars that do not. Neither the War Powers Resolution nor our nation's practice draws that line.
To evade the resolution's deadline, the administration might close down our Libyan operations briefly and then restart them. It might scale back our operations to non-combat surveillance or coordination, rather than targeting. Or it might claim that the U.S. isn't really engaging in hostilities because NATO has taken the lead in Libya. None of these fixes would be consistent with a fair, honest reading of the War Powers Resolution, or with the intentions of the Democratic-controlled Congress that passed it.
An administration truly interested in respecting the rule of law has two choices. It could abide by the War Powers Resolution and begin withdrawing from Libya. This would leave France and Britain in the lurch over Libya; it might even deal a deadly blow to the NATO alliance.
Or Mr. Obama might declare the War Powers Resolution an unconstitutional infringement on presidential power. This would enrage his antiwar base. But it would place him squarely in the tradition of the presidents who have held office before him. 5/20/2011