With the UN Security Council-authorized military strikes on Libya in full swing, legal debate in the United States is focused on whether, as a matter of U.S. constitutional law, the president may unilaterally order U.S. forces to participate in those operations without going to Congress for permission.
Though President Barack Obama will be presenting his case for U.S. intervention in a speech tonight, March 28, many members of Congress, as well as academics and public critics, are crying constitutional foul. Some congressional leaders are complaining (NYT) that Congress wasn’t properly consulted before the use of force in Libya. Some members from both parties are criticizing the president for violating the Constitution, which they argue lodges such decisions in the Congress.
President Obama, in officially notifying Congress two days after military strikes began, defended them as "pursuant to my constitutional authority to conduct U.S. foreign relations and as commander in chief and chief executive." He emphasized that "The United States has not deployed ground forces," is "conducting a limited and well-defined mission in support of international efforts to protect civilians and prevent a humanitarian disaster," and "will seek a rapid, but responsible, transition of operations to coalition, regional, or international organizations . . . to realize the objectives of UN Security Council Resolutions."
So which side is right? Does the president have constitutional authority to authorize U.S. military operations in Libya without congressional approval?
The short answer is, "Very likely yes, but . . ." I say "very likely" because constitutional law in this area remains hotly contested between the Executive and Legislative branches (along with legal scholars and other commentators), but it strongly favors the president in this case. I say "but . . ." because as Libyan operations evolve without congressional approval, or if Congress takes certain actions of its own, the answer may change.
Constitutional Ambiguities and Presidential Discretion
Why isn’t the law clearer on such a serious constitutional issue? There are several reasons.
First, the constitutional text is ambiguous. Congress has power to "declare war" (something the United States has not formally done since WWII) and to raise and support a military, while the president is commander in chief and has other executive powers, but this division of authority doesn’t provide much specific guidance, especially with respect to limited uses of force that might not be "wars" or might not need to be "declared." Second, courts have not tried to settle this long-standing constitutional debate (even though members of Congress or military service members have occasionally brought suits challenging the president’s military actions), leaving it to the Executive and Legislative branches to work it out or compete for control. Third, essentially everyone, including those who support a strong congressional role in authorizing force, recognizes the imperative of giving the president some discretion to respond to immediate national security threats, but it is difficult to agree on where that discretion should begin and end. The result is that law in this area is defined not by clear and consistently enforced lines but by custom, worked out in a continual political struggle between the Executive and Legislative branches.
For now, the president’s actions stand on pretty solid legal ground. If they extend over months, however, that ground will weaken, so the President has great incentive to win congressional support--and quickly.
Historically, the president has asserted broad authority to use force without congressional authorization, and Congress has largely acquiesced, resulting in a consistent pattern of presidential leeway. The largest military action unauthorized by Congress was the Korean War, launched by President Truman in 1950, which was also significant because it took place as the United States emerged as a superpower, with the president in command of massive, permanent, and global forces. More recent unilateral military actions include Haiti in 2004 and in 1994, Bosnia in 1995, Somalia in 1992, Panama in 1989, and Libya in 1986. In doing so, presidents have emphasized many common contextual factors to justify their actions, some of which President Obama emphasized in his notification to Congress: that the operations are "limited in their nature, duration, and scope"; that they are intended to enforce international treaties critical to U.S. national interests, in this case "to support an international coalition as it takes all necessary measures to enforce the terms of UN Security Council Resolution 1973"; and that the operations are otherwise "in the national security and foreign policy interests of the United States."
An especially pertinent prior case is President Clinton’s 1999 Kosovo intervention, because it was also based heavily on humanitarian concerns about civilian slaughter, though in both cases the presidents have also emphasized U.S. national interests in averting regional instability. Many members of Congress objected to Clinton’s unilateral actions, and a congressional resolution to authorize the ongoing Kosovo operations failed to pass, but NATO operations more intense than those over Libya today ran for nearly eighty days.
In all of these cases, despite pushback from some members, Congress funded the operations. In none of the presidential assertions of power to initiate military action has Congress played its ultimate trump card: using its power of the purse to strip all funding for the operations.
The War Powers Resolution and a Ticking Clock
Toward the end of the Vietnam War, a time of weakened presidency, Congress tried to reassert itself in passing the 1973 War Powers Resolution, to provide some clarity to this area of law and to avoid having to rely on that politically difficult funding-cutoff trump card. Among other things, that law requires the president to promptly report to and consult with Congress on any significant uses of military force, and it mandates that unless Congress authorizes continued action, after sixty (or in some extraordinary cases ninety) days, the president must automatically cease operations.
But the War Powers Resolution didn’t resolve the fundamental constitutional disputes either, for several reasons. First, that law seems to recognize that there are some military actions for which the president doesn’t need advance authorization from Congress, including perhaps some that are completed within the sixty-day or ninety-day window (that might well include ongoing operations in Libya). Second, successive presidents have questioned the War Powers Resolution’s own constitutionality to the extent that it impinges on the president’s inherent powers, which are again not clearly defined but include at minimum some authority to take actions in defense of national security interests (which might, again, apply in Libya).
So, even if the president had legal authority to initiate the Libya attacks, what happens if the sixty-day clock expires for the operations without Congress authorizing the action? That would be a constitutional showdown that both branches want to avoid. In the meantime, though, that ticking clock adds pressure on the president to convince Congress to support his actions or to modify those actions to win Congress’ approval.
For now, the president’s actions stand on pretty solid legal ground. If they extend over months, however, that ground will weaken, so the president has great incentive to win congressional support--and quickly. While the law of presidential war powers may not be neat and tidy, that resulting imperative of joint presidential-congressional cooperation on military adventures is what the Constitution was structured to promote.