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Wednesday, March 23, 2011

The War Powers Act: On the Letter and Spirit of the Law in the Case of Obama's Decision on Ameican Involvement in Libya

The New York Times describes the War Powers Act of 1973 as follows: “(P)assed in the aftermath of the Vietnam War, [the act] puts limits on the ability of the President to send American troops into combat areas without Congressional approval. Under the act, the President can only send combat troops into battle or into areas where 'imminent' hostilities are likely, for 60 days without either a declaration of war by Congress or a specific Congressional mandate. The President can extend the time the troops are in the combat area for 30 extra days, without Congressional approval, for a total of 90 days.” While the law is beneficial in that it enables the President to act in his capacity as commander in chief when time does not permit a preceding Congressional declaration or more specific resolution (e.g., the U.S. being attacked), the act is not limited to such cases. Therefore, the President can put off Congressional approval even when he could obtain it before sending the troops into battle.  Regardless of the exigency of the military action, Congressional approval is required within 90 days, and this applies even if the President is acting on behalf of the U.S. as a member of the United Nations to enforce a Security Council resolution.

President Obama, on behalf of the U.S., decided that the U.S. military would take part in the international coalition enforcing the Security Council’s resolution allowing members to use all means necessary to protect Libyan civilians from Qaddafi’s government, which had turned on its people. The President did not need to obtain a Congressional declaration or resolution before he did so, even though he could have done so by asking Congress’ House and Senate to convene to debate and vote on the question. Although some thought hearings would have been necessary, that would have been excessive, as the judgment required was beyond simply requiring more information. In any case, a closed briefing for both chambers could have been held before the debates and votes. The President knew of the Security Council’s debate and vote beforehand, so he could have notified Congressional leaders in enough time for them to prepare to convene a day or two afterward. “We should have been called into session yesterday or the day before,” Rep. Nadler said at the time the American involvement in the international enforcement action commenced. Even though the President did not have to take this route, I contend that he would have been on firmer ground democratically had he done so. Had either of the Congressional chambers voted down a resolution authorizing American involvement, I believe the President would have acted illegally in involving the U.S. military in enforcing the U.N. resolution. The U.N. itself cannot activate any military of any of the members.

Because in a republic the legislative representatives should have a role in the decision up front if doing so is possible, the President should have done so in the Libyan case because there was time for it. “I think [the President] has a duty and an obligation to come to Congress,” Rep. Jason Chaffetz (R-Utah.) told The Huffington Post. “I see no clear and present danger to the United States of America. I just don't. We're in a bit of the fog at the moment as to what the president is trying to ultimately do.” Chaffetz was saying, in effect, that the War Powers Act should only be applied when there is not time for a President to get Congressional approval up front.

Other members of Congress challenged the War Powers Act itself. “In the absence of a credible, direct threat to the United States and its allies or to our valuable national interests, what excuse is there for not seeking congressional approval of military action?” asked Rep. Jerry Nadler (D-N.Y.) in a separate interview. “I think it is wrong and a usurpation of power and the fact that prior presidents have done it is not an excuse.” The usurpation language challenges the constitutionality of the Act. Similarly, Rep. Ron Paul (R-Tex.) was circulating a resolution "[e]xpressing the sense of Congress that the President is required to obtain in advance specific statutory authorization for the use of United States Armed Forces in response to civil unrest in Libya." The measure was supported by Reps. Michael Honda (D-Calif.) and John Conyers (D-Mich.), among others. This resolution directly challenged the War Powers Act, presumably because they thought the President could have obtained Congressional approval before acting.

As it stands, the War Powers Act gives a President 90 days to get Congressional approval. To limit the Act to cases where there is no time to get Congressional approval would ensnare application of the law to judicial interpretation: Was there really a window for Congressional approval? Yet to give the President 90 days regardless of whether he could obtain such approval at the outset enables him to take cover under the letter of the law even when he violates its spirit. The members of Congress who criticized the President for not obtaining Congressional approval before sending troops over the Libya were essentially accusing the President of having done precisely that. Had the President secured Congressional approval beforehand, his hand as commander in chief would have been strengthened because a majority of the American people and states would have been behind him. Had Congress refused, he should not have proceeded with the action; doing so anyway, while expedient, would not have been in line with our republic. So going to Congress first would have been a win-win for the President from a democratic standpoint, although not from that of wanting to take part in the international effort. Sometimes it takes self-discipline for a President to put the republic form above even what he wants to do in a particular case.

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