The Growing Conflict Over the Legality of the Libya Intervention

A bipartisan group of ten members of the House of Representatives recently filed a lawsuit challenging the constitutionality of the US military action in Libya. Meanwhile, Speaker of the House John Boehner has sent a letter to the president stating that the Obama Administration will be in violation of the 1973 War Powers Act unless they get congressional authorization by June 19.

It is unlikely that Kucinich’s lawsuit will prevail in the courts. Judges will probably throw it out because it raises a “political question” or on other procedural grounds, such as standing. Nonetheless, I think Kucinich and his allies are right on the merits. The Libya intervention has long since passed the point where it is large enough to be considered a war. And only Congress has the power to declare war under the Constitution. Therefore, the war is unconstitutional unless and until the president gets congressional authorization. This is true regardless of whether or not the judiciary issues a ruling on the subject. Congress and the President have an independent duty to obey the Constitution even when the courts do not force them to do so. Then-Senator Barack Obama got it right back in 2007, when he wrote that “[t]he President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” I discussed the relevant constitutional issues in more detail here, here, and here. This is one of the rare issues where Dennis Kucinich and I agree.

Boehner’s War Powers Act argument raises a different set of issues. The Act requires the president to get congressional authorization for any deployment of military forces in “hostilities” abroad within 90 days of the start of the conflict. It’s pretty obvious that the Libya intervention involves the kind of “hostilities” covered by the Act, and that the administration will therefore be in violation of the Act if it doesn’t get congressional authorization soon. The Administration argues that the War Powers Act does not apply because “U.S. operations [in Libya] do not involve sustained fighting or active exchanges of fire with hostile forces.” This argument is barely worthy of response. US warplanes have been bombing Libyan forces for weeks, and the Libyan troops have returned fire (even if ineffectively). This state of affairs sure looks like “sustained fighting” and “active exchanges of fire” to me.

However, there is a longstanding dispute over the constitutionality over the War Powers Act itself. Numerous presidents, legal scholars, and even members of Congress have long argued that it usurps the constitutional prerogatives of the executive. The latter include Speaker Boehner himself, who previously questioned the Act’s constitutionality and even voted for its repeal. In my view, the Act is constitutional because it exercises Congress’ Article I power to “make rules for the Government and Regulation of the land and naval Forces.” This authority includes the power to regulate the time and place of the armed forces’ deployment. But there are serious arguments on the other side of this dispute as well. Be that as it may, the Libya intervention is illegal regardless of the legal status of the War Powers Act. Even in the absence of that law, the president still could not start a war without congressional authorization.

Legal questions aside, the growing willingness of Congress to challenge Obama over Libya illustrates the political dangers of waging war without congressional approval. If anything goes wrong, the president ends up taking all the political blame. That’s why most presidents have in fact sought congressional authorization for major military actions, whether or not they believed it to be legally necessary. President Obama can reduce his political exposure if he now gets congressional support or if he quickly brings the conflict to a successful conclusion. If he does neither, his political problems are likely to get worse. Boehner’s new-found willingness to challenge Obama on this issue could be a sign of things to come.

UPDATE: The full text of the Administration’s report to Congress defending the Libya intervention is available here. While the report makes a reasonable policy argument for the administration’s actions, the legal argument (pg. 25) is extremely weak. In addition to the point analyzed above, the report emphasizes that the majority of air strikes are now being flown by European planes, rather than American ones. However, it acknowledges that US forces are still launching airstrikes for “the suppression of enemy air defense and occasional strikes by unmanned Predator UAVs against a specific set of targets.” That sure sounds like armed “hostilities” and “sustained fighting” to me.

UPDATE #2: The full text of Boehner’s letter to the president is available here [HT: commenter David W.].