The
New York Times describes
the War Powers Act of 1973 as follows: “(P)assed in the aftermath of the
Vietnam War, [the act] puts limits on the ability of the President to send
American troops into combat areas without Congressional approval. Under the
act, the President can only send combat troops into battle or into areas where
'imminent' hostilities are likely, for 60 days without either a declaration of
war by Congress or a specific Congressional mandate. The President can extend
the time the troops are in the combat area for 30 extra days, without
Congressional approval, for a total of 90 days.”[1] While the law is beneficial
in that it enables the President to act in his capacity as commander in chief
when time does not permit a preceding Congressional declaration or more
specific resolution (e.g., the U.S. being attacked), the act is not limited to
such cases. Therefore, the President can put off Congressional approval even
when he could obtain it before sending the troops into battle. Regardless
of the exigency of the military action, Congressional approval is required
within 90 days, and this applies even if the President is acting on behalf of
the U.S. as a member of the United Nations to enforce a Security Council
resolution.
President Obama, on behalf of the U.S., decided that the U.S.
military would take part in the international coalition enforcing the Security
Council’s resolution allowing members to use all means necessary to protect
Libyan civilians from Qaddafi’s government, which had turned on its people. The
President did not need to obtain a Congressional declaration or resolution
before he did so, even though he could have done so by asking Congress’ House
and Senate to convene to debate and vote on the question. Although some thought
hearings would have been necessary, that would have been excessive, as the
judgment required was beyond simply requiring more information. In any case, a
closed briefing for both chambers could have been held before the debates and
votes. The President knew of the Security Council’s debate and vote beforehand,
so he could have notified Congressional leaders in enough time for them to
prepare to convene a day or two afterward. “We should have been called into
session yesterday or the day before,” Rep. Nadler said at the time the American
involvement in the international enforcement action commenced.[2] Even though
the President did not have to take this route, I contend that he would have
been on firmer ground democratically had he done so. Had either of the
Congressional chambers voted down a resolution authorizing American
involvement, I believe the President would have acted illegally in involving
the U.S. military in enforcing the U.N. resolution. The U.N. itself cannot
activate any military of any of the members.
Because in a republic the legislative representatives should have
a role in the decision up front if
doing so is possible, the President should have done so in the Libyan case
because there was time for it. “I think [the President] has a duty and an
obligation to come to Congress,” Rep. Jason Chaffetz (R-Utah.) told The
Huffington Post.[3] He continued, “I see no clear and present danger to the
United States of America. I just don't. We're in a bit of the fog at the moment
as to what the president is trying to ultimately do.” Chaffetz was saying, in
effect, that the War Powers Act should only be applied when there is not time
for a President to get Congressional approval up front.
Other members of Congress challenged the War Powers Act itself.
“In the absence of a credible, direct threat to the United States and its
allies or to our valuable national interests, what excuse is there for not
seeking congressional approval of military action?” asked Rep. Jerry Nadler
(D-N.Y.) in a separate interview. “I think it is wrong and a usurpation of
power and the fact that prior presidents have done it is not an excuse.”[4] The
usurpation language challenges the constitutionality of the Act. Similarly,
Rep. Ron Paul (R-Tex.) was circulating a resolution "[e]xpressing the
sense of Congress that the President is required to obtain in advance specific
statutory authorization for the use of United States Armed Forces in response
to civil unrest in Libya."[5] The measure was supported by Reps. Michael
Honda (D-Calif.) and John Conyers (D-Mich.), among others. This resolution
directly challenged the War Powers Act, presumably because they thought the
President could have obtained Congressional approval before acting.
As it stands, the War Powers Act gives a President 90 days to get
Congressional approval. To limit the Act to cases where there is no time to get
Congressional approval would ensnare application of the law to judicial
interpretation: Was
there really a window for Congressional approval? Yet to give the
President 90 days regardless of whether he could obtain such approval at the
outset enables him to take cover under the letter of the law even when he
violates its spirit. The members of Congress who criticized the President for
not obtaining Congressional approval before sending troops over the Libya were
essentially accusing the President of having done precisely that. Had the
President secured Congressional approval beforehand, his hand as commander in
chief would have been strengthened because a majority of the American people and
states would have been behind him. Had Congress refused, he should not have
proceeded with the action; doing so anyway, while expedient, would not have
been in line with our republic. So going to Congress first would have been a
win-win for the President from a democratic standpoint, although not from that
of wanting to take part in the international effort. Sometimes it takes
self-discipline for a President to put the republic form above even what he
wants to do in a particular case.
3. Sam Stein and Amanda Terkel, "Obama's Libya Policy Makes Strange Bedfellows of Congressional Critics," The Huffington Post, March 21, 2011.
4. Ibid.
5. Ibid.
2. Ibid.
