What is most striking is that we have entered the fighting without any direct authorization from Congress. There is no declaration of war, and there is no "specific statutory authorization," with which we began the war in Afghanistan and both our recent wars with Iraq. And there is, as far as I'm aware, no substantial objection to this from Congress -- even though apparently public support for this fighting is quite mixed.
I doubt that the Framers of our Constitution intended to grant the President the power to initiate armed conflict on his or her own. Glenn Greenwald in Salon reports that both Obama and now-Secretary of State Hillary Clinton, as Presidential candidates, appeared to say that the President could initiate defensive fighting -- and, as Greenwald says, Libya isn't that. But I think the fact that Obama has acted as he has, and with as little Congressional opposition as he's faced, confirms that today the President does indeed have some power to initiate armed conflict. If we understand the law not as its words' intrinsic meaning or its drafters' intentions, but as what those who apply the law have actually made of it -- that is, if we are "legal realists" -- then this is the law, the constitutional law, today.
Exactly how much power to initiate armed conflict the President has isn't clear, but it is clear that there are limits on this power. Our land wars of the past 20 years have all been authorized by Congress, and I don't see a basis in current practice for saying that the President can start a war of that dimension on his or her own. But the fighting in Libya, or at least our part in it, is much more restricted: it involves no U.S. soldiers on the ground (and President Obama assures us that won't change), and perhaps involves only a fairly brief series of attacks on well-specified military targets. How much more than this small-scale engagement the President currently has legal power to initiate we do not know; but this much, I think, is within his or her present powers.
That doesn't mean that we can go on attacking Libyan targets indefinitely. We have a statute on the books, the War Powers Resolution, which makes clear that this attack must end within 60 days (with a 30-day extension in some circumstances) unless it is affirmatively authorized by Congress. Those 60 days are sometimes described as a "blank check." I don't think they are a blank check -- that is, I don't think the President can do just anything for 60 days, though I do think he or she can do what Obama has done so far. But at the 60-day limit, this fighting must either be approved by Congress or ended. It is true that that rule has on one occasion been unambiguously violated -- by President Clinton, in another good cause, the 1999 bombing campaign against Yugoslavia to end its oppression of Kosovo -- and it's also true that Presidents and Congresses have pushed back and forth on what the War Powers Resolution required on a number of other occasions. But the War Powers Resolution is still on the books, and I don't think we have an accumulated practice that indicates it's no longer really binding.
The rule that Presidents can initiate some level of small-scale military engagement may be wise or unwise. It also may or may not be retained; the accumulated practice that is its basis could be altered. But I think it is now the law, and we will now have another occasion to view its consequences. I hope they will be good.
