Obama's Violation of the War Powers Act

The Obama Administration contends that the U.S. military involvement in Libya does not require Congressional authorization under the War Powers Resolution that was enacted over President Nixon’s veto in 1973. [1] [2]  The reasoning is that “U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve U.S. ground troops.”   If the Administration is right, then a close reading of the War Powers Resolution will uphold its position.

Statutes (which the War Powers Resolution is, notwithstanding the nomenclature) need to be interpreted, and legislatures will often declare their intent within the body of the law in order to aid that process.  Congress did that in this case, and it is there for all to read that the War Powers Resolution was enacted to “insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities,” and that the U.S. military only enter into hostilities pursuant to a declaration of war, a specific statutory authorization, or a national emergency created by attack upon the United States, its territories or possessions, or its armed forces. [3]

The U.S. involvement in Libya certainly did not involve the collective judgment of both the Congress and the President, but was decided on by the President alone.  There was no declaration of war.  There was no statutory authorization.  There was no attack upon the United States, its territories or possessions, or its armed forces.  Thus U.S. military action in Libya was directly contrary to the stated intent of the War Powers Resolution.

But the Administration asserts that because American forces are not currently involved in “sustained fighting or active exchanges of fire with hostile forces,” and do not “involve U.S. ground troops,” the War Powers Resolution is not implicated.  While it is true that the U.S. military is now largely in a supporting role, that was not the case at the beginning of the intervention, and the War Powers Resolution requires that the “President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities….” [4]  That was simply not done in this case, and there was nothing whatsoever preventing the President from consulting with Congress before U.S. military involvement.

The Administration’s argument appears to be that U.S. forces have retired to a supporting role within the 60 day window provided by the War Powers Resolution, and so no further consultation with Congress is necessary.  What follows will assume the validity of that argument. 

While it is true that the legislation provides that no further military action can proceed after the 60 day period without Congressional authorization subject to stated exceptions [5], that is simply irrelevant to the question of whether the War Powers Resolution was violated in this case.  The President failed to consult with Congress prior to U.S. military involvement in Libya when it was clearly possible for him to do so.  Congressional leadership was consulted in advance [6], but the Congressional leadership is not Congress, and consulting the leadership only deprived the other senators and representatives of their legislatively authorized opportunity to weigh-in on the question.

It is not a crime to violate the War Powers Resolution.  Since under the Constitution a President can only be impeached and removed from office for “Treason, Bribery, or other high Crimes and Misdemeanors,” [7] there is no remedy for this violation other than Congress taking action to require an end to U.S. involvement in Libya.  It seems a good time, however, to give the War Powers Resolution some teeth in order to prevent similar violations in the future.