When a president goes to war
Did President Obama break the law when he ordered U.S. planes to bomb Moammar Kadafi’s forces in Libya? Some critics think so. But as with all discussions of the wartime powers of Congress and the president, the law is less clear than partisans would like to admit.
The principal legal argument against Obama is that he should have obtained a declaration of war or its equivalent from Congress. But even some critics of presidential power acknowledge that a president must have the flexibility to respond to emergencies. That’s what Obama said he was doing in Libya.
In assessing whether Obama exceeded his authority, two documents are key: The Constitution, which describes the president as commander in chief (while giving Congress the power to declare war) and the 1973 War Powers Resolution. The latter law, passed over the veto of President Nixon, was a Vietnam-inspired attempt to prevent similar entanglements without congressional authority. It requires a president to report to Congress on a military operation within 48 hours and to end the operation after 60 days if the Senate and House haven’t approved it.
The law also says, however, that the president can undertake such an operation only pursuant to (1) a declaration of war, (2) specific statutory authorization or (3) a national emergency created by an attack on the United States, its territories or possessions, or its armed forces. Obviously the operation in Libya doesn’t meet those criteria, but in his message to Congress after the operation began, Obama offered an alternative justification: U.S. involvement was necessary because “the growing instability in Libya could ignite wider instability in the Middle East, with dangerous consequences to the national security interests of the United States.”
So did Obama violate the law? The situation is complex: Successive presidents have regarded the limitations in the war powers law as unconstitutional infringements on their authority as commander in chief. Obama, in making his report, pointedly said (as previous presidents have) that he was acting “consistent with” the War Powers Resolution, not “pursuant to” it. The Supreme Court is unlikely to rule on the issue because it is considered a “political question.” In our view, the commander in chief is authorized to commit U.S. forces to a short-term humanitarian mission, and to the extent the war powers law forbids that, it’s unconstitutional.
If the operation in Libya were to mutate into a long-term commitment, we believe Obama should seek congressional approval. No doubt he would be forced to anyway by political reality — including Congress’ control of funding. Meanwhile, reports of his lawlessness are exaggerated.
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