Two months later, is the war in Libya still constitutional?

Does it matter that congress hasn't approved our involvement in fighting in Libya? Yes, very much.

Back when this intervention began, when President Obama scarcely nodded in Congress' direction, I argued that it was now a fact of U.S. constitutional law that presidents can undertake small-scale military actions on their own initiative.

But starting them is one thing, continuing them is another. Not just as a matter of general principles of good governance, but because the War Powers Resolution (WPR), enacted by Congress over President Nixon's veto in 1973, says so. It specifies that if the President intrroduces our forces "into hostilities," and if Congress does not enact a "specific statutory authorization" for this engagement within 60 days of a mandatory report by the President to Congess about the engagement (a report due within 48 hours after the introduction of our forces) -- then the troops must be withdrawn, though the President can obtain an extension of up to 30 days to do so.

There doesn't seem to be any good ground for denying that the War Powers Resolution's requirements apply to our engagement in Libya. Though we passed leading responsibility over to NATO, we are an integral part of NATO. A US general is its "Supreme Allied Commander, Europe." As Bruce Ackerman and Oona Hathaway recently pointed out, "Secretary of State Hillary Clinton recently admitted that 'the United States continues to fly 25 percent of all sorties. We continue to provide the majority of intelligence, surveillance, and reconnaissance assets. We continue to support all of our allies in their efforts.'"

It is true that we do not have ground troops in Libya -- or at least have not acknowledged having any there. (CIA agents are another matter, but the War Powers Resolution doesn't regulate their use since it applies only to the introduction of "United States Armed Forces" into hostile situations.) But if, for instance, we fire a missile from a ship in international waters to hit a target on the land of another nation, we are fighting -- and we ought not to parse the WPR's provisions about introduction of United States forces into hostilities to try to avoid this reality. All the more so if our surveillance planes and bombers, to say nothing of our attack helicopters, are in Libyan airspace. To deny this would be not only to deny stubborn fact, but also to undermine the purpose of the WPR (not to mention of the Constitution’s allocation of war powers) – namely, to keep the country out of war unless we really do, collectively, want to incur its perils.

This is a curable situation -- Congress can, if it so chooses, approve the engagement, and can also impose limits on the engagement. President Obama could veto such a constrained authorization, but only at the cost of potentially not receiving the "specific statutory authorization" that the War Powers Resolution requires. More likely, the White House and Congress would negotiate the terms of legislation both could live with. The approval statute, of course, would be a bit late, but Congress can choose to regard that problem as academic. The result wouldn't be entirely neat, but it would acknowledge the continued relevance of the WPR's limits, much as the lengthy dispute over President Reagan's introduction of troops into Lebanon, ultimately ratified and placed under limits by Congress in 1983, did. (For a concise recounting of the Lebanon story, see Stephen Dycus et al., National Security Law 323-25 (3rd ed. 2002).)

It's striking, to say the least, that President Obama has fought on in Libya past the 60 day limit. (As of today, June 8, 2011, he is 19 days beyond the 60 days + 2 days for report filing that began to run when our engagement in Libya began on March 18.) President George W. Bush obtained congressional authorization for our attack on Al Qaeda and the Taliban, and then got a separate authorization for our war in Iraq. His father received congressional authorization for the first Gulf War. The elder President Bush had to be pushed by a court decision to seek congessional approval, but that may reflect an important political point: with Republicans at least somewhat constrained by their frequent advocacy of strong executive powers, and Democrats at least somewhat reluctant to criticize a Democratic President, Democratic presidents may be better positioned to violate the War Powers Resolution than Republican presidents are. That might help explain why the most unambiguous violation of the WPR's time limits was by another Democrat, President Clinton, in connection with the NATO bombing campaign against Yugoslavia in defense of Kosovars of Albania descent in 1999.

Of course, there's another very significant difference between the unauthorized wars and the authorized ones, besides the political party of the Presidents responsible. This difference is the size and nature of the engagement. Our two wars with Iraq and our ongoing war in Afghanistan have been large-scale, full-throttle miltary engaements; the bombing campaign in Yugoslavia, and the air war in Libya, are more circumscribed. But not so circumscribed, it seems to me, as to fall below the level of "hostilities."

Perhaps the most important difference is a completely pragmatic one: it looked, at the time we intervened in Libya, as if we might be in and out of there within the 60-day period. President Clinton may have had similar hopes when he began the bombing in Yugoslavia. In fact, the Yugoslav government accepted defeat around day 77 of the bombing – and so Clinton, who never sought Congressional authorization, was ultimately not guilty of more than about two weeks of violating the WPR.

Will Congress pass such a statute? Maybe not, both because Congress is locked in partisan rancor and because the Libyan war isn't going all that well. If Congress doesn't pass it, the next question will be whether Congress does anything else at the same time. If Congress approves new funding legislation specifically for this campaign, that by itself might count as authorization – even though section 8(a)(1) of the WPR said forty years ago that it wouldn’t. On the other hand, if Congress passes legislation calling for the withdrawal of the troops, that will definitively show that Obama is acting without Congressional authorization. In fact it would show this lack of authorization even if Obama successfully vetoed the legislation, since the point would remain that a majority (though not a two-thirds majority) of members of Congress affirmatively disapproved of his intervention.

But what if Congress refuses to pass that sort of affirmative legislation? At that point, President Obama may want to argue that he is not exceeding his authority, since Congress hasn’t said he is. Something like this actually happened to President Clinton: on a single day, April 28, 1999, the House of Representatives defeated (by a tie vote) a concurrent resolution approving the bombing campaign, defeated legislation declaring war on Yugoslavia, and defeated legislation cutting off US troops' involvement in the campaign. (Dycus et al., supra, provide the details, and other information on these events that I've relied on, at 191 & 409-13. It's worth noting, as Ackerman & Hathaway point out, that Congress did subsequently -- and before the 60-day clock had expired -- approve special funding to support the costs of the Yugoslav campaign.)

I don’t think the Congressional paralysis displayed on April 28, 1999 should count as approval, and I maintain that President Obama needs Congress’ affirmative approval, not just its failure to disapprove, in order to continue the fighting. But Congressional ambivalence in action might remove enough of the sting to make it easier for Obama to press on with the war, in the hopes that he too can bring a bombing campaign to a conclusion quickly, as President Clinton did before him.