More than 80 days have passed since American warplanes began to assault Libyan government forces.  According to the War Powers Resolution, the war is unauthorized, and the American military should complete its withdraw next week.

 

Try telling that to President Obama.

 

The U.S. Constitution sees a shared responsibility between Congress and the Executive when it comes to initiating military action.  Congress is empowered to formally declare war, while the President is vested with the Commander in Chief role.  In practice, Congress has declared war against only eleven foreign powers in the history of our nation, most recently in World War II.  However, according to the Congressional Research Service, American military forces have been used in situations of conflict or potential conflict over 100 times.

 

The War Powers Resolution was crafted by Congress in the aftermath of Vietnam to limit the President’s ability to draw America into war, while still acknowledging his prerogative as Commander in Chief.  The War Powers Resolution permits a President to commit U.S. troops without Congressional authorization in situations of “national emergency created by attack upon the United States, its territories or possessions, or its armed forces,” but requires him gain Congressional authorization within 60 days.  Absent such authorization, the President is to withdraw forces within 30 days.

 

The Constitutionality of the War Powers Resolution has been long been in dispute, and the Supreme Court has declined to settle the matter.  Because the Resolution is designed to constrain the power of the executive, Presidents have never acknowledged it as binding. For the most part, however, they have at least recognized it and generally tried to act consistent with its provisions.

 

As a presidential candidate, Barack Obama spoke forcefully of Congress’ role in initiating the use of military force.  He helped to build the narrative that former President Bush had misused his executive powers to get America into war, even though Bush had secured prior Congressional authorization for military action in both Afghanistan and Iraq.  Responding to a question about the advisability of a strike against Iranian nuclear facilities, Obama made a blanket statement to the Boston Globe in 2007:  “The 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… It is always preferable to have the informed consent of Congress prior to any military action.”

 

In the case of Libya, President Obama categorically did not seek the informed consent of Congress before committing U.S. troops.  The Administration held a single briefing for selected Members of Congress after the decision had been made, but did not pursue a Congressional Resolution.  As stipulated by the War Powers Resolution, he did notify Congress within 48 hours of hostilities.  However, as the 60-day clock wound down, and now as the 90-day clock expires, he has made little effort get Congressional backing for the endeavor.

 

Flimsy defenses are offered as to why the War Powers Resolution should not apply in the case of Libya:  the need for fast action to prevent the slaughter of civilians, the limited nature of the U.S. involvement, or the role of international organizations in authorizing and coordinating it.  Yet the very impetus for the War Powers Resolution was the sense that America had been gradually drawn into an escalating war in Vietnam without the benefit of full debate.

 

Whether you support or oppose the war, no legal parsing can take away the fact that American military assets are being used in Libya without Congressional authorization in what is shaping up to be a lengthy conflict.

 

On June 3, the U.S. House of Representatives passed a non-binding measure disapproving of the President’s handing of the war and failure to involve Congress.  The measure was an alternative to a stronger bill that would have required the complete cessation of all U.S. military activities in Libya.  The Senate is still determining whether to take up a McCain-Kerry resolution supporting the war, or another measure.  While finally voicing Congressional views on the war, these resolutions neither authorize nor de-authorize the war.

 

Any way you slice it, the War Powers Resolution is dead, or at least comatose, and President Obama of all people is responsible for the final blow.

 

So what?  Is this just another symbolic, inside-the-beltway turf battle?

 

First, we have another glaring example of a national security-related flip-flop by President Obama.  As a former Constitutional law professor, Obama would have been well versed about the War Powers Resolution long before he opined on the campaign trail about the importance of Congressional consent.  Funny how a person’s views of executive power change when that person becomes the executive.  Liberals who voted for President Obama because they believed such campaign promises should be holding him accountable.  Most are not.  Where is Nancy Pelosi’s outrage?

 

Second, Congress shares some responsibility for the death of the War Powers Resolution.  Congress has missed countless opportunities to go on record declaring war many times in our country’s history.  For example, the Korean War, though launched well before passage of the War Powers Resolution, was a significant military action that lacked Congressional authorization.  Even more recent authorized wars, such as the two Gulf Wars, were approved by Congressional Resolution rather than a formal declaration of war.

 

Aside from declaring war, the Constitution grants Congress other war-related powers.  If Congress disapproves of a war, it can pass laws preventing certain activities, or it can defund the effort.  For example, Congress passed a law to prevent President Nixon from sending troops into Laos or Thailand.  This didn’t foreclose the President’s ability to do so, but it did mean he would have had to get specific Congressional authorization first.  Congress can also use its oversight and personnel confirmation powers to influence the executive.

 

President Obama’s disregard for Congress was bad enough, but there was no reason for Congress not to debate Libya weeks or months ago on its own initiative.  Such debate likely would have resulted in fuller White House cooperation, while forcing Members to take a stronger position on the matter.

 

If Congress isn’t going to exercise its Constitutionally-mandated powers, perhaps it shouldn’t be surprised when the President ignores them.

 

Finally, the Founders had a good reason for not leaving war powers exclusively in the hands of the President.  They feared that an unchecked executive would be more apt to lead our country into reckless wars than a Congress accountable to the American people.

 

It’s no coincidence that, declining to involve Congress in any meaningful way, President Obama also has failed to persuade the American people to get behind the Libya effort.  The Libya intervention has been one of our least popular wars at this stage in the conflict.  A healthy debate in Congress would have forced the President to build a strong case with the American people for military action – which would have been in his own interest.

 

The apparent death of the War Powers Resolution should not stop future Presidents from consulting with Congress on matters of war and peace.