Presidential Power: The War Powers Act and Obama's Military Action in Libya

Republicans are making a big deal about Obama's "violation" of the War Powers Act (WPA, a.k.a. War Powers Resolution, because it's not actually a law it's a joint "opinion" of Congress).  I figured it was worth a post in order to clear things up and also point out that the President's position isn't a very productive one.


Here are the questions we have to answer:
(1) Does President Obama need Congressional approval?
(2) If he does, has he satisfied his duty to Congress with what he has provided already?


BACKGROUND

The WPA is the result of nearly 200 years of confusion surrounding which branch of government really has the power to take the country to war.  Following the Vietnam War and all the madness that came with it, Congress sought to clarify who had the power to declare war.  In 1973, they passed the WPA.


The WPA States:

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 pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces. (hmm... where does Libya fall within this framework?  emergency?)

The president shall submit within 48 hours [of the commencement of military action] to the Speaker of the House of 

Representatives and to the President pro tempore of the Senate a report, in writing... [addressing] circumstances... authority... and scope...

Now here's the important part for whether the President has violated the Act:

Within sixty calendar days after a report is submitted, the President shall terminate any use of United States Armed Forces, unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity...

LIBYA TIMELINE

February 15, 2011.  Massive protests break out in Benghazi, Libya.  This was the beginning of the Civil War now engulfing the entire country.


March 17, 2011.  The U.N. authorizes military action against Libya.


March 19, 2011.  The U.S. begins bombing Libya.  The President authorized the action without approval from Congress.


March 24, 2011.  Critics immediately surface to challenge the President.  Most notably, and perhaps most ironically, the Republican Speaker of the House, Rep. Boehner challenged the President complaining about a "lack of clarity."


March 28, 2011.  The President addresses the nation, informing the world of his reasons for launching missile strikes against libya.  In essence, he argues that sometimes we should intervene to protect people when their leaders attempt to massacre them.  He kept it vague, so there isn't much in there to get angry about.  The President also claims that he informed Congress within the 48 hour window and specifically addresses the issue of the WPA.

June 14, 2011. Speaker Boehner reignites the controversy by warning Obama that he must act by Sunday or risk being in violation of the WPA.  The Speaker demands that Obama come to Congress, explain his reasoning for the military actions, and seek their approval of the military efforts.


June 15, 2011.  The White House responds to Boehner's challenge by digging in their heels and claiming that they don't need Congressional approval for this mission.


June 16, 2011. A group of Congressmen from both parties sued the President claiming that his actions in Libya are illegal (including Denis Kucinich, who has been complaining about this from the start, and Ron Paul, everyone's favorite libertarian perma-candidate for President).


(1) DOES THE PRESIDENT NEED CONGRESSIONAL APPROVAL?
This is THE big question in almost every military action.  The Constitution is virtually silent on the matter other than giving to Congress the power to "declare war" and the President the powers as "commander-in-chief."  When the Constitution was first ratified these two phrases may have meant something completely different.  For example, consider the fact that we did not have a standing Military, and it would have been impossible for the President to declare war without Congress first raising an army.  On the other hand, at the Constitutional Convention, the words were actually changed from "making" to "declaring" specifically because the delegates thought it important to recognize the President's role in War making.


We also have to take into account the fact that the President has effectively declared war (or at least entered the country into military hostilities) more than 125 times in the past 200 years.  In the famous concurring opinions of Youngstown Steel, Justices Frankfurter and Jackson both talked about the concept of prolonged Congressional inaction be essentially the same as acquiescence.  However, it was the dissent by Justice Vinson which proved particularly prophetic.  Vinson argued that Congress has no power to check Presidential actions in an area where he had Constitutional authority.  Vinson believed that War making was one of these areas.  Vinson's dissent would become political reality during the Nixon Presidency.  The concept of an all power President eventually became known as Unitary Executive Theory in conservative circles, or the Imperial Presidency in liberal circles.


What is particularly ironic about this situation the Republicans who are now crowing about unchecked executive power were all too eager to hand over that authority to President Bush just 10 short years ago. What changed?  The political party of the President?  Is the Libya action different from Iraq?  Probably a little bit of both.  Republicans are, perhaps, too eager to score a hit on Obama even when it reveals a latent hypocrisy in their own position.  At the same time, the mission in Libya strikes different cords than the mission in Iraq.  The Libya mission seems more like a "humanitarian" mission, which has never been enough reason for the right -wing war-hawks to dust off the nuclear launch codes.  So, really there may be a little hypocrisy here, but it's also an issue of different beliefs regarding when we should use our military (humanitarian interests vs. economic/military interests).


Getting back to the issue of the WPA, it appears that the President does, indeed, need Congressional approval.  This is assuming that the WPA is even constitutional, which is another contentious legal issue.  Unfortunately, it's unlikely that the issue will ever get to the SC and even if it did, the Court has been perfectly happy letting the President and Congress fight it out when it comes to issues of war making.


(2) HAS THE PRESIDENT SATISFIED HIS DUTY?
Honestly, I think that he has.  Again assuming the WPA is constitutional, then he has to submit a report (which he said he did), and outline the circumstances, authority, and scope of the mission (which he certainly did in his address to the nation).  At that point, the issue goes to Congress to decide whether to act or not.


So, in essence, it appears that Boehner is just being a petualnt child trying to get Obama to return so the Speaker can lord over him while he grovels, begging for Congressional approval.  That's not required by the WPA.  As far as I'm concerned the President has met his duty, and certainly satisfied the spirit of the WPA.  The fact that Congress has not acted yet to respond is their own fault and perhaps if the Republicans were not so busy pushing their pet agenda, they would have time to act on things that actually matter.


In short, YES the President needs to seek Congressional Approval, but it appears that he has already done so and should NOT be required to come crawling to Congress every time the Speaker wants to score a cheap political point.


SIDE NOTES

There are a couple of issues nagging at the corners of this who debate.  First, is the issue of whether we should be in Libya from a policy standpoint.  I fully agree with the President when it comes to protecting the rebels from being massacred (although there has been some suggestion that they are, in fact, being supported by Al Queda groups, which would be troubling).  However, I think that the mission has gone awry in the past couple months.  For example, no where in either the President's speech nor the U.N. resolution was authority given to assassinate Gaddafi.  It is for the Libyan people, NOT the international community to decide how to overthrow their leader.  It would be absolutely illegal and immoral for Gaddafi to be assassinated, no matter how bad of a man he may be.


The second issue worth discussing is the idea that the type of mission effects whether Congressional Approval is required.  I'm not sure I agree with that.  The Constitution certainly doesn't differentiate, and if we took the President's argument here in conjunction with the Constitutional language literally, then the President could get away with anything just by not calling it a "war."  That hardly seems to be in the spirit of what was intended.  The WPA appears to be even more broad, including all military actions (or at least most that we could imagine).  If the WPA doesn't cover military strikes against another country, then it would be pretty worthless.  I don't know much about this issue in particular, but my guess is that the President's actions should fall under the WPA if we are being honest about the intent of the document.  Therefore, the President's claims that he is free and clear make me wonder what happened to the guy who railed against Bush II for doing the exact same thing...


Common Sense