The War Powers Resolution of 1973 allows the President to wage war for 60 days without the assent of Congress during “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” Using this justification to go to war in Libya, which represented no national emergency for the United States nor an attack on US territories, possessions or forces is some pretty thin gruel.
But now the Obama administration is up against the 60 day limit for waging war, and they show no signs of either disengaging US forces from Libya or asking Congress for permission to continue:
The legal license President Obama used to justify U.S. military intervention in Libya expires today, and there’s little sign the White House is working quickly to get it renewed.
Exactly two months ago, Obama notified Congress of his unilateral decision to engage in “limited military action” to help defend the Libyan people from attacks by their leader, Moammar Gadhafi.
But under federal law — the War Powers Resolution of 1973 — Obama is only allowed to keep U.S. forces engaged in hostilities for 60 days, unless Congress declares war, authorizes funding for the effort or extends the deadline.
Congress has not enacted legislation authorizing military involvement in Libya, and the White House has not made a public effort to comply with the rule.
Experts say this is the first time an American president has defied the War Powers Resolution’s deadline for participation in combat operations without any concurrent steps by Congress to fund or otherwise authorize the role.
While every administration since 1973 and some lawmakers have questioned the constitutionality of the resolution’s infringement on executive power, it has not been successfully challenged in court and remains the law of the land.
The closest any President has come to defying the War Powers Resolution was Bill Clinton’s military action in Kosovo. Congress didn’t specifically authorize that action, but the Clinton administration noted that Congress did pass an appropriations bill funding the war, and claimed that was approval enough.
Regardless, I’m not sure what case the Obama administration could possibly make for these actions being legal. The questions of the legality of the War Powers Resolution circle around its expansion of Presidential war power. Going strictly by the Constitution, the President may only go to war when the Congress says so. The resolution expanded that to allow the President to make war for 60 days without authorization under specific circumstances.
Not only is the President thumbing his nose at what was almost certainly an unconstitutional expansion of executive war-making authority, he’s thumbing his nose at the Constitution itself.