Demonstrators in Minneapolis, Minn., protest the American intervention in Libya.
American troops have now been engaged in military action in Libya for more than 60 days without congressional authorization, a breach of the War Powers Resolution of 1973, but President Obama said the mission is too limited to require approval. Instead, Obama encouraged Congress to pass a resolution expressing its support for the operation, which has been under NATO’s command since late March. Though several lawmakers expressed concern about the blown deadline, there does not appear to be enough concern to threaten the president’s ability to wage war. Legal scholars like Bruce Ackerman and Glenn Greenwald, however, say the Libyan action has been unconstitutional from the beginning because the resolution applies only to “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” It’s hard to argue that Libya meets that definition, even if humanitarian concerns ultimately trump any demand that Obama obey the law. —KDG
Legal scholars say that congressional inaction could severely weaken a law intended to take back legislative control of U.S. warmaking.
“The fundamental point is: Before we engage in a serious military endeavor, both branches should give their consent,” said Bruce Ackerman, a Yale University law professor. If Obama ignores the law, he said, “we go back to the status quo before 1973. I mean, Richard Nixon will have won.”
The War Powers Resolution was an attempt to settle a dispute as old as the Constitution. That document says only Congress has the power to declare war but the president is commander in chief of the military.
Presidents construed that to mean they could send U.S. forces into combat without congressional approval. In many cases, the reasoning was that the fights would be too small, or too short, to be considered a “war.”