The U.S. War Powers Act: The Case of Obama's Decision on Ameican Involvement in Libya

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.

1. "How the War Powers Act Works," The New York Times, March 29, 1984.
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.

South Sudan as a Sovereign State: Governmental Change in Slow Motion

Announced in Sudan’s capital, Khartoum, on February 7, 2011, voters in the oil-producing south overwhelming chose to secede from the Arab north. According to the New York Times, 98.83 percent of the more than 3.8 million registered voters in the south chose to separate from the north. The referendum had been agreed to as part of the peace agreement in 2005, after two long and brutal civil wars between the Arab Muslim north and the mostly animist and Christian south. “Today we received these results and we accept and welcome these results because they represent the will of the southern people,”[1] President Bashir said in a statement on state television, according to Reuters. In Washington, the White House released a statement by President Obama congratulating the people of south Sudan and announcing “the intention of the United States to formally recognize southern Sudan as a sovereign, independent state in July 2011.”[2]  Actual independence would be declared on July 9, when the peace agreement that set the stage for the vote expired. In the meantime, issues regarding citizenship, oil-revenue rights and the contested and volatile region of Abyei would be settled.

Analysis:

The referendum is in line with the political principle that popular sovereignty (i.e., of the people) transcends the authority of governments. That is to say, people have the right to establish government (rather than vice versa). In this case, the southern Sudanese decided to form a new and separate state. The result of the vote, being almost unanimous, proffers an excellent snapshot of a will of the people.  Typically, this term is abused, such as when a candidate wins reelection by a margin of fifteen or twenty percentage points.  Receiving 65% of the vote does not represent the will of the people; rather, it is the will of a majority of the people. There is a difference. In the case of south Sudan, we can say with confidence that it was the people's will to separate. That is to say, the people spoke with one voice. How rare it is for there to be a will of the people; hence we treat the view of a bare majority as such--essentially over-generalizing.  Politicians typically do the same with mandates.

What is unclear from the referendum is how the people feel about waiting until July for actual independence.  To be sure, there are outstanding issues that need to be worked out, but is it really necessary for independence to wait for everything to be worked out; President Bashir has already announced that his government would recognize the independence of the south. The acceptance of July by the Obama administration is similar to that administration's decision at the time not to push President Mubarak of Egypt to step down before September when elections would be held even had there not been mass protests.  In short, government officials seem to be oriented to time in slow motion.

The Obama administration's announcement that it would recognize south Sudan as a sovereign and independent state might not seem fitting, as the new state would presumably be a new state in the African Union (AU).  However, that union, unlike the EU and US, is a confederation akin to an alliance wherein the states continue to hold all of the governmental sovereignty. In contrast to confederations such as the AU, modern federations divide governmental sovereignty between two systems of government--that of the federation and that of the state governments.  That the AU had not intervened in the internal discord in the Ivory Coast, Egypt and Sudan suggests that that union is simply a league of friendship, merely able to mediate if invited, as in Zimbabwe during the crisis between the President and prime minister. The feckless condition of the AU can also be seen in the fact that it took so long for south Sudan to even vote on independence in spite of the fact that it was the will of the people in south Sudan. Was it really necessary, for example, to wait until 2011 when the peace treaty was signed in 2005? A union with teeth might have been able to expedite things. Unlike the states of the EU and US, the typical state in the AU is run by a dictator rather than being a republic in fact as well as name. The American Founding Fathers believed that a federal system could only have republics as members; dictators would guard their power too much and thus be too inclined to break off. Unlike a dictator, government officials in a republic are used to sharing power, so ceding some sovereignty to an empire-scale federation is not so hard. However, it can be in the political or economic interest of even a Leviathan dictator to transfer some governmental sovereignty to a federal union. Specifically, a dictator may be expected to benefit from the economic and political gains that come from a united political front and a common market. Twenty percent of 100 is more than 100% of 10. A federation of non-republic states is thus possible.

In terms of south Sudan, the cost of a weak AU was having to suffer a snail's pace on the road to independence. To be sure, such a pace was in the interest of Sudan's government. However, issues are only intractable if they are seen as such, and the people in the south could have voted on a date as well as on whether to secede. The dissolution of the Soviet Union attests to how quickly polities can change.Just as it was not clear in Febrauary, 2011 that President Mubarak had to stay in office in Egypt for seven months in order for there to be order, it should not have been presumed that south Sudan had to wait until July. Even if top government officials are typically old people, governments need not move in slow motion. The dragged-out pace evinced by south Sudan's independence even after the overwhelming 99% voting to secede suggests that governmental time is not our time and that we, the people, can move the old clocks an hour ahead in keeping with the increasing daylight. Whereas the progress of the twentieth century was largely technoligical, in the twenty-first century the human race may reach a threshold of perception wherein the dogmatic or arbitrary nature of governments is finally seen for what it is, and exercise greater popular sovereignty to make our governments more responsive. As of 2011, a critical mass of perception had not yet occurred; hence it could not yet be said that the human race itself had reached a new sense of its power over its governments.

1. Josh Kron, "Sudan Leader to Accept Secession of South," The New York Times, February 7, 2011.