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Don’t Blame Obama For The Death Of The War Powers Act

Today marks the sixtieth day since American military forces were committed to the United Nations/NATO campaign in Libya and, as The Hill notes, that implicates some rather important deadlines under the War Powers Act:

U.S. operations in Libya hit the 60-day mark Friday, but Congress has grown largely silent on the administration’s unilateral intervention into the war-torn North African nation.

The 1973 War Powers Act (WPA) — the statute President Obama invoked when he launched forces in March — requires presidents to secure congressional approval for military operations within 60 days, or withdraw forces within the next 30.

Congress did not authorize the mission — which includes a no-fly zone, bombing raids, a sea blockade and civilian-protection operations — but the deadline has stirred little sense of urgency on Capitol Hill.

House lawmakers are in the midst of a weeklong recess. And the Senate, which stuck around, is also unlikely to address the issue this week, according to Sen. Carl Levin (D-Mich.), the chairman of the Armed Services Committee.

Most of the reaction to this news, especially on the right, is to focus on the allegation that the President is now fighting an illegal war. At The American Thinker, Thomas Lifson alleges that President Obama is getting a free pass because he’s a Democrat:

If a Republican president had acted this way, you can be sure that there would be calls for his impeachment from Democrats, and that the nation’s establishment media outlets would be highlighting Friday’s deadline as a historic milestone of an out-of-control war machine operting with contempt for the law. But, after all, Barack Obama’s their guy, and so all you hear is the sound of crickets chirping.

Ace of Spades agrees, and goes one step further:

Where does this idea spring from that when a Democrat wants to go to war without constitutional authorization, he can point to whatever countries he’s in alliance with and say “I know the Constitution says I need an authorization of war, but look, I’ve got Martinique on my side, Hoss. Gold standard.”

What?

I doesn’t bloody matter what organization is nominally in charge of a war, or what combination of countries you’re allied with. The Constitution does not say that you need either a declaration of war or France has your back.

There is one statement. It applies to all circumstances. It doesn’t matter if we’re doing it on behalf of the UN, NATO, the G-8, the NAFTA trade zone, SEATO, or fuck-all else.

This is an illegal war.

The President is a war criminal.

Brad at The Crossed Pond, Bruce McQuain, and Jazz Shaw, however, get the point that this isn’t primarily the fault of the President, it is the fault of a Congress that has basically sat back and done nothing for two months. This despite the fact that the War Powers Act, and the Constitution, gives it considerable power over American military operations including, if necessary, the power to cut off funding for a military action started by a President without the consent or agreement of Congress. But they’ve done nothing. Oh, there have been hearings held, but neither the House GOP nor the Senate Democrats have made any effort to bring a vote on the use of American military force in Libya to the floor for a vote.

That’s not President Obama’s fault, that’s the fault of a Congress that would prefer that the President handle the “dirty work” of foreign policy rather than fulfilling its Constitutional obligations. Fortunately, there are a few Members of Congress who are trying to fix that:

Six Republican senators are challenging President Obama’s authority to conduct an open-ended war in Libya without congressional authorization. The six conservative lawmakers (Rand Paul (R-KY), Jim DeMint (R-SC), Mike Lee (R-UT), Ron Johnson (R-WI), Tom Coburn (R-OK), and John Cornyn (R-TX)) sent a letter to the president on May 18th asking if he intends to comply with the War Powers Resolution. The full text of the letter can be found here.

There are times when a law remains on the books but it pretty much loses its force because nobody bothers to enforce it. That’s essentially what is happening with the War Powers Act thanks to decades of Congressional abdication. These six Senators are, it seems, trying to change that. I look forward to the Administration’s response.

 

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Thomas says:

    This is the silliest post I have ever read!!! So, the president is excused from obeying the law because no one in Congress holds him to account? Baloney! We the people will hold him to account! Dear Lord! You cannot be serious with this! This is an impeachable offense!!!

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  2. Thomas,

    The President obeyed the law when he notified Congress 60 days ago. After that the ball was in their court. Their failure to act is, in fact, a tacit endorsement of the President’s policies in Libya, just as the Republican Congress’s failure to act in the 1990s was a tacit endorsement of President Clinton’s actions in the Balkans, which also went forward without prior Congressional authorization

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  3. Thomas,

    Also, if this is an “impeachable offense,” then so was President Reagan’s unauthorized invasion of Grenada.

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  4. Thomas says:

    Doug, the president notified Congress two weeks after dropping bombs on Libya. I fail to see that the War Powers Act allows the president to take military action prior to notification of congress

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  5. APL says:

    Why is it that politicians can break laws, and violate the
    Constitution without any consequences?

    Just because other Presidents have violated
    the War Powers Act, does not make it legal.

    Just because Congress passes laws that
    are unconstitutional, does not make it right
    the next time they do it.

    Both Republicans and Democrats are guilty
    of these things over and over.

    I think that it is time to hold all accountable.

    ENOUGH IS ENOUGH!!!!!!!

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  6. Thomas says:

    @APL, THANK YOU!!! BRAVO!!! 100% agreed

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  7. Thomas,

    the president notified Congress two weeks after dropping bombs on Libya.

    Not true, the President sent a letter as required by law to the Speaker of the House and President Pro Tempore of the Senate within two days after the initiation of military action

    I fail to see that the War Powers Act allows the president to take military action prior to notification of congress

    That’s exactly what the WPA says

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  8. anjin-san says:

    Good luck with the reason thing Doug. These guys blame Obama for the fall of the Roman Empire…

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  9. Boyd says:

    So, if this is an illegal act by the President, what’s the penalty? And if your answer to that question is “Impeachment and conviction,” you’d better get on your Representative and Senators to get started. Let me know how that turns out.

    That being said, it seems to me that one point amidst the complaints is true: if this had happened on Bush 43′s watch, I believe this 60-day anniversary would the top story from the “news leaders” such as WaPo, NYT, the three broadcast networks’ news organizations, and then the non-Fox cable news channels. But with Obama as President, little mention will be made, and what mention there is will be pooh-poohed as a minor technicality.

    And it may well be a minor technicality, it’s just that they wouldn’t treat it that way if someone from the “wrong party” was the President.

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  10. CB says:

    hold the phone, but i feel like agreeing with the wingers.

    at the very least can we accept that both the executive and the legislature are, and really always have been, complicit in this arrangement?

    in the end, this has been business as usual since before WWII, with every successive administration and congress either abusing their power, or acquiescing to the lure of empire. to that end, if everyone is to blame, no one is to blame, and nothing will be done about it.

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  11. CB says:

    I believe this 60-day anniversary would the top story from the “news leaders” such as WaPo, NYT, the three broadcast networks’ news organizations, and then the non-Fox cable news channels.

    dude, i recognize the somewhat different natures of the conflicts, but there was this war thing called iraq. to tell me that a fairly limited (if potentiallty extremely problematic) intervention is impeachable, but to then completely ignore the absolute clusterf*ck that was/is the iraq war, strikes me as completely inconsistent. and yeah, im aware of the authorization for use of force.

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  12. Alex Knapp says:

    Has anyone looked into whether the action remains legal because of the statutes enacting the provisions of NATO into law?

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  13. ratufa says:

    if this had happened on Bush 43′s watch, I believe this 60-day anniversary would the top story from the “news leaders” such as WaPo, NYT, the three broadcast networks’ news organizations, and then the non-Fox cable news channels.

    OK. If you believe this, then it would also seem pretty reasonable to expect that, when it happens on Obama’s watch, this would be a top story on Fox news. But Fox, like the WaPo, CNN, ABC news, and a few others, pretty much have the same (small) amount of coverage.

    And the WSJ has an editorial by John Yoo suggesting that Obama act like other Presidents and tell Congress to go f*** themselves.

    But, there’s little political pressure from the Public for Congress to do something, much of Congress probably doesn’t want to be put in the position of having to vote on this, and the President is (of course) happy to grab all the Executive authority he can. And interventionists in both parties are all too happy for him to do so.

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  14. Jay Tea says:

    Doug, you’re the lawyer, not me, but the law is clear: Congress has to take an “affirmative action” to give its imprimatur on the military activity, or it stops. In this case, silence does NOT equal assent.

    Obama has enough allies, lackies, and lickspittles in Congress to at least introduce a resolution of support. And he’s a Constitutional scholar, so he has no excuse to NOT know the letter of the law. So yeah, I give him at least half the blame. Not all of it, but more than half.

    J.

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  15. Michael says:

    I fail to see that the War Powers Act allows the president to take military action prior to notification of congress

    I was convinced that this was intellectual satire, until you agreed with APL, now I think you’re just ignorant. In an effort to cure you of that condition, I’ll post the relevant part of the War Powers Resolution:

    In the absence of a declaration of war, in any case in which United States Armed Forces are introduced—

    (1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;
    (2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or
    (3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation;

    the President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth—

    (A) the circumstances necessitating the introduction of United States Armed Forces;
    (B) the constitutional and legislative authority under which such introduction took place; and
    (C) the estimated scope and duration of the hostilities or involvement.

    http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001543—-000-.html

    You’re welcome.

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  16. mpw280 says:

    Wasn’t this the same Obama that talked a big line about war powers when a senator for a couple of months before becoming a candidate and talking a lot bigger line about it then? Nah it can’t be. Maybe reality is a lot different when campaigning, but only for a democrat. mpw

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  17. Jay Tea says:

    mpw, that was the same Senator Obama who said that raising the debt ceiling past 9 trillion was onconscionable. Any resemblance between Senator Obama and President Obama are purely coincidental.

    J.

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  18. Rock says:

    Obama got Osama. He don’t need so stinking approval of Congress. He da man, yo! He be channeling Dubya, yo!

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  19. matt says:

    Any resemblance between Senator Obama and President Obama are purely coincidental.

    Thanks for the laugh :P

    I’m disappointed in the lack of action by congress in relation to this but I’m also reasonably sure they don’t give a flying fck what I think :(

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