Epstein on War Powers Resolution and Libya

War Powers and Libya
Richard A. Epstein
Defining Ideas
June 21, 2011

When it comes to U.S. involvement in Libya, the Obama administration has made a mess in dealing with its obligations under the War Powers Resolution (WPR), a law designed to check the president’s ability to commit America to war without the consent of Congress. Before I read the unsigned statement that President Barack Obama sent to Congress under the bland heading, "United States Activities in Libya," I was prepared to give the president and his legal team the benefit of the doubt. But his embarrassingly thin legal analysis calls into question the constitutional competence of those members of his divided legal team who concluded that the president is entitled to go it alone in Libya without further Congressional authorization.

Here is an excerpt of the statement:

The President is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of "hostilities" contemplated by the Resolution’s 60 day termination provision [that provision states that the president can engage in war for 60 days without Congressional authorization]. U.S. forces are playing a constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited to the terms of the United Nations Security Council Resolution that authorized the use of force solely to protect civilians and civilian populated areas under attack or threat of attack and to enforce a no-fly zone and an arms embargo. U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.

There are two ways to deal with this effort to justify the president’s actions in Libya. The first asks whether the actions comply with the WPR. The second asks whether that resolution (which became a law after Vietnam over the veto of President Richard Nixon) is consistent with the requirements of the Constitution. Let’s take them in order.

Richard A. Epstein