War Powers Irresolution

by Andrew Rudalevige on March 22, 2011 · 1 comment

in Blogs

A question raised by a Politico story yesterday—“Did Obama lose Congress on Libya?”—probably has a simple answer. To wit, “no.” But it is worth noting the continuance of the “imperial presidency” in the war powers area. Score one for the “institutionalists” over the “individualists” in presidency studies. President Obama is hardly the same personality type as George W. Bush, or Bill Clinton. But positionality, if that’s a word, has trumped personality once again.

Note, for instance, the letter sent to Congress on March 21, in which President Obama cited the Libyan operation as “an international effort authorized by the United Nations (U.N.) Security Council.” He said that “I have directed these actions, which are in the national security and foreign policy interests of the United States, pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.” And he added that, “I am providing this report as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution. I appreciate the support of the Congress in this action.”

The problem is that “consistent with” the War Powers Resolution [WPR] is not the same as “pursuant to” the WPR. And Congress, while surely grateful for Obama’s appreciation, has not actually been asked to give this action its support.

A question raised by a Politico story yesterday—“Did Obama lose Congress on Libya?”—probably has a simple answer. To wit, “no.” But it is worth noting the continuance of the “imperial presidency” in the war powers area. Score one for the “institutionalists” over the “individualists” in presidency studies. President Obama is hardly the same personality type as George W. Bush, or Bill Clinton. But positionality, if that’s a word, has trumped personality once again.

Note, for instance, the letter sent to Congress on March 21, in which President Obama cited the Libyan operation as “an international effort authorized by the United Nations (U.N.) Security Council.” He said that “I have directed these actions, which are in the national security and foreign policy interests of the United States, pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.” And he added that, “I am providing this report as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution. I appreciate the support of the Congress in this action.”

The problem is that “consistent with” the War Powers Resolution [WPR] is not the same as “pursuant to” the WPR. And Congress, while surely grateful for Obama’s appreciation, has not actually been asked to give this action its support.Nor is it likely to be. As a result, members of Congress have accused the president of violating the law and the Constitution. (Others, like Sen. John Cornyn (R-TX), have attacked the president for treating Congress like a “potted plant.” Since Cornyn argued in 2007 that even a nonbinding resolution challenging presidential national security decisions would “encourage our enemies and undermine our allies and deflate the morale of our troops,” he gets to go on the long list of political actors (and not a few scholars) who have thought a strong presidency is a good thing when the president shares your party affiliation and policy preferences, and a bad thing when he does not.)

Said members – even Cornyn – are probably right, on paper. But Obama’s decision to commit troops to the Libyan front fits comfortably into a long line of presidential actions. Only once since its passage in 1973—it was enacted over the veto of then-President Richard Nixon—has the WPR been invoked as good law by a president. That was Gerald Ford, in responding to the Khmer Rouge seizure of the container ship Mayaguez of the coast of Cambodia in 1975. Even he reported to Congress only after the operation (a political, if not military, success) was over. When Ronald Reagan ordered the bombing of Libya in 1986, he called congressional leaders to the White House only as US planes approached Tripoli.

The WPR (the full text is here) is meant to limit presidents’ ability to use force without legislative approval. It aims to ensure that – contra Obama’s claim in his letter to Congress – “the constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances” are exercised only when war has been declared, or specific statutory authorization given, or in the case of “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” None of these, obviously, are the case in Libya.

The WPR has probably had intermittent effect, notably when presidents ponder large military action – in pressuring both Presidents Bush to request congressional authorization for their wars in Iraq, for instance. But it has hardly limited the more discrete unilateral use of force by presidents.

For one thing, the Resolution calls for presidential consultation with Congress in “every possible instance.” Though politics is the art of the possible, presidents have proven adept at finding such instances to be impossible. They have also – like Obama – tended to redefine “consultation” as “notification,” maybe in advance but more often not. This matters for another reason too: the WPR contains a “clock” that limits the use of troops to 60 (or sometimes 90) days without specific congressional approval, but that clock only starts ticking when presidents report to Congress under the auspices of the resolution. Reporting “consistent with” the resolution, as Obama and his predecessors have done, doesn’t count.

Indeed, the WPR is notorious for its poor drafting – resulting in part from merging House and Senate versions together with little eye towards their consistency. It is thus “replete with tortured ambiguity and self-contradiction,” as the scholars Louis Fisher and David Gray Adler—no fans of unchecked presidential authority—wrote in 1998 (in response to the Kosovo War).

The WPR is clear, however, on at least one relevant point. The resolution specifically states that treaty obligations do not supersede the requirement for specific authorization. Thus, a UN resolution is not in itself enough to override the WPR, despite Obama’s invocation of same in his March 21 letter.

Legislators are not helpless here, if they are serious about their objections to Obama’s actions. For one thing, they are allowed to start the WPR clock themselves, by concurrent resolution. Presidents dispute the constitutionality of this provision, especially after the _Chadha_ of 1983, but this has never been directly tested in court. Legislators have simply not pushed the point. A series of votes in 1999 seemed to both condemn and authorize President Clinton’s use of airpower in Kosovo. The WPR is usually invoked in bills that are doing what the president already wants them to do (as in the 1991 and 2002 Iraq war resolutions), not in opposition.

None of this is to say that the war in Libya is the wrong, or right, policy – it is merely to note the continuing inability or unwillingness of Congress to stand up for what it claims to believe in. At present, the WPR is just another “parchment barrier” of the sort James Madison warned would not withstand “the encroaching spirit of power.”

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