President Obama is facing mounting criticism for failing to secure Congressional approval for the war being waged in Libya. These critics, including many members of Congress, argue that the Constitution gives Congress the power to decide when America goes to war, and the 1973 War Powers Resolution requires Congressional authorization for any military operation lasting longer than 60 days (a time limit that expired on May 20). They note that even President Bush, who was vilified for waging unpopular wars, received Congressional authorization for his use of force in Iraq and Afghanistan. The Obama administration has argued that it doesn’t need Congress’ permission to continue the operation. So who is right?
The Constitution contains some ambiguity about war powers; it divides these powers between the president and Congress by declaring the former the Commander-in-Chief of the armed forces and giving the latter the power to declare war. Many scholars interpret this to mean that Congress has the authority to decide when to launch hostilities and the president is more of a strategic and tactical commander. To clarify these roles, Congress passed the War Powers Resolution in 1973 over President Nixon’s veto. This law states that the president may only use force under three scenarios: (1) Congress has declared war, (2) Congress has provided explicit statutory authorization for the use of force, or (3) an emergency situation arises in which the president must act quickly to protect U.S. interests. America’s military intervention in Libya has so far met none of these conditions: Congress has not declared war or voted to authorize the mission and even the war’s supporters acknowledge that no imminent threat to U.S. territory, citizens, or other interests prompted intervention–rather, the main goal was to protect civilians, as stated in the UN resolution that authorized the mission.
So Obama’s war is illegal, right? Well, it isn’t quite that simple. Every president since Nixon has argued that the War Powers Act is an unconstitutional power grab by Congress that restricts the president’s legitimate prerogatives as Commander-in-Chief. The Supreme Court has refused to rule on the act’s constitutionality, calling the controversy a political dispute between the executive and legislative branches that they should settle amongst themselves. Presidents have typically finessed this by seeking Congressional authorization for wars and reporting to Congress as required by the War Powers Act while being careful not to admit that they are bound by the law.
So what can Congress do? Congress has the indisputable power to cut off funding for operations it doesn’t approve of, but it has rarely even threatened to do this given the political costs of appearing not to support troops in harm’s way. While some in Congress have suggested it cut off funds for the Libya operation if it remains unauthorized, Republican House Speaker John Boehner has argued that by terminating U.S. involvement we would be turning our backs on NATO. Boehner appears to want clarification on the mission’s scope, justification, and exit strategy–to place some constraints on the operation rather than end it by Congressional fiat. Thus continues a long tradition of Congressional deference to the president in the arena of war powers. (The most recent example before Libya: Democrats promised to end the Iraq War upon taking over Congress in 2006 and they failed to achieve anything substantive despite ample campaign talk about cutting off funding, etc.).
What do you think? Should President Obama abide by the War Powers Resolution even though presidents have disputed its constitutionality? Should Congress consider cutting off funds for the operation if Obama refuses to provide a clear timetable, mission, and exit strategy? Or should Congress stay out and let the president conduct American foreign policy as only the president can? After all, as Senators Lindsey Graham (R) and Jim Webb (D) have both acknowledged, “you can’t have 535 commanders-in-chief.”