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What Does the Libya Lawsuit Mean?

Authors: Amar C. Bakshi, CNN.com, and Matthew C. Waxman, Adjunct Senior Fellow for Law and Foreign Policy
June 15, 2011
cnn.com

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Editor's Note: Matthew Waxman is Associate Professor at Columbia Law School and Adjunct Senior Fellow at the Council on Foreign Relations. The following is an edited transcript of an interview with Professor Waxman.

Amar C. Bakshi: A bipartisan group of House members said today they are filing a lawsuit that challenges U.S. participation in the Libya military mission. What does this  lawsuit mean?

Matthew Waxman: The War Powers Resolution was enacted in the wake of the Vietnam War to prevent the President from engaging in wars and major military adventures without Congress's explicit consent.  It does so by requiring the President to withdraw U.S. military forces from armed hostilities within 60 days unless Congress expressly approves otherwise.

The following question has since arisen many times: What remedy exists if the President ignores the requirements set out in that resolution? What happens, for example, if 60 days passes and Congress hasn't authorized the use of force but the President continues to direct military activities abroad?

There are several types of remedies:

The first is litigation: members of Congress or other interested parties could sue the President, arguing that he is acting illegally.  They could seek a court judgment ordering the cessation of military operations. That is what's apparently about to happen now.

The second is that Congress could use its legislative power:  it could pass a law prohibiting the military operations or it could use the “power of the purse” to strip funding for military operations. Either way, Congress could legislatively force the President to stop the operations, but this is very hard to pull off politically.

The third remedy is political, and this is the likely to be the most consequential one in this case: Members of Congress could use the argument that the President is violating the law as a political stick to try to pressure the President in certain ways, extract concessions from him, force him to spend political capital, and gain a greater say in managing or curbing the operation.

Why hasn't President Obama requested formal Congressional authorization for the Libya intervention?

It's not really clear exactly why President Obama hasn't requested formal Congresional authorization, especially because - at least early on – intervention was being loudly championed by some members of congress.  Over time, as the operation has dragged on, though, Congressional support has eroded.

Perhaps one reason President Obama did not seek Congressional authorization was that the White House felt it didn't need it for this type of operation, and it didn't want to concede that point.

Another possibility is that the President – with other big legislative agenda items currently at stake – did not want to expose Libya operations to a major Congressional debate.

Will this suit go anywhere?

The idea of suing the President for violation of the War Powers Resolution is not a new one. This was tried, for example, by some members of Congress during the Kosovo operations in 1999 when, similar to this situation, President Clinton conducted major military operations in conjunction with NATO past the sixty day deadline in the War Powers Resolution.  Some members of Congress sued, but the Court ended up tossing the lawsuit out.

I'd expect a similar outcome in this particular case because courts tend to be very reluctant to wade into War Powers disputes between the political branches of Congress.

How can Obama argue that he does not need Congressional authorization?

There are a couple of possible arguments. The Obama Administration is saying we should expect its legal explanation very soon, so we'll then have a clearer picture of its arguments.

Some Presidents – including President Richard Nixon when he unsuccessfully vetoed the War Powers Resolution – have argued that it's unconstitutional.

It is more likely that President Obama will argue that these particular operations in Libya don't trigger the War Powers Resolution's sixty day withdrawal deadline requirement because the specific type of operations conducted by American forces don't rise to the level of combat hostilities contemplated by the statute.  The Administration may argue specifically that the U.S. forces are almost entirely in a support role; that we don't have boots on the ground; and that our forces are not directly engaging enemy forces with hostile fire.

For those reasons the Administration may argue the sixty-day clock hasn't really been ticking since we handed over the vast bulk of air operations to other NATO coalition partners.

This article appears in full on CFR.org by permission of its original publisher. It was originally available here.

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