Published by The Lawfare Institute
in Cooperation With
“I think the international community’s is going to come together . . . to try to have a coordinated effort to bring pressure on Gadhafi,” said White House Chief of Staff Bill Daley, yesterday, on Meet the Press. “The president knows that the ultimate decision he has to make at times is to put men and women in harm's way, and you do that only with great consultation with your allies.” (My emphasis.) Daley did not mention whether the administration believed it needed to consult with or receive the support of Congress in order to intervene in Libya. But influential Senators yesterday urged the President to consider a no-fly zone, and the administration is considering its military options. Which raises two questions if the President decides to intervene in Libya: (1) Will he seek formal congressional authorization?, and (2) if not, does he have the legal authority to order U.S. troops to conduct air raids, enforce a no-fly zone, and perhaps more, without congressional authorization?
The answer to (1) involves a tradeoff: Presidents are better off legally and politically if Congress is expressly on board, ex ante, for a military intervention; but getting Congress’s approval can take time and political energy, Congress can impose constraints, and Congress might decline to give such approval, as the House of Representatives did, by a tie vote, in refusing to authorize President Clinton’s Kosovo bombings in 1999. (The last three express ex ante approvals Congress gave for military interventions were the 2002 Authorization to Use Force in Iraq, the 2001 AUMF against those responsible for 9/11, and the 1992 AUMF for Iraq.)
The answer to (2) is probably yes, but the strength of the arguments depend on facts on the ground in Libya, the type of military intervention the President employs, and what the U.N. Security Counsel does. Little judicial precedent concretely addresses this issue, but plenty of executive branch precedent does, and the War Powers Resolution looms in the background. (Below are web-available links to the major OLC Legal Opinions – some more carefully and cautiously reasoned than others – related to unilateral military intervention during the past few decades.) The bottom line as I see it, very briefly, is as follows. (I will try to supplement this cursory analysis – which is much too simple – as events unfold.)
The President has employed U.S. military force abroad in various guises, without express congressional authorization, hundreds of times in American history. (The most significant unilateral military interventions in the last 60 or so years were the Korean War and the Kosovo bombings.) There is no definitive and comprehensive legal theory on which all these interventions rest. The President’s Article II power to intervene militarily is at its apex when he does so to protect American lives. It is unclear whether this could be a legitimate rationale for a Libyan intervention. The OLC opinions also invoke the protection of American property and American security interests as a supplemental rationale for intervention, though these are somewhat weaker bases. Some of the OLC opinions view the President’s constitutional power to turn on whether the intervention amounts to “war” within the meaning of the War Declaration clause, though other opinions view all interventions as alike from a constitutional perspective. The President’s constitutional power, a few opinions hold, is enhanced to an uncertain degree when a U.N. Security Council Resolution (UNSCR) supports the intervention, either because the President can enforce the UNSCR pursuant to his duty to “take Care that the Laws be faithfully executed” (as the Truman administration controversially argued in Korea), or because of a general interest in upholding the credibility of the United Nations and furthering U.S. national security interests. The hardest legal question for the administration will arise if there are no American lives or property at stake and no UNSCR in support of the intervention, and the intervention is justified on the basis of a combination of pure humanitarian interests and a general U.S. foreign policy interest that is tied to upholding peace and security in the region. This is the hardest question because if the President can use military force abroad in this context – as many believe he can, and as several OLC precedents suggest, mostly in dicta – then there are few if any constitutional limitations on his ability to initiate the use force abroad. The major precedent in support of an intervention in this context would be the Kosovo bombings of 1999, for which there is no OLC opinion, but which appeared to be justified on precisely this rationale.
As for the War Powers Resolution, it requires the President to submit a report to Congress within 48 hours whenever armed forces are introduced “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” After the President reports the introduction of forces into imminent or actual hostilities, the Resolution requires him to withdraw those forces within 60 days (or 90 days, based on military necessity) unless Congress has authorized continued operations. The Obama administration would clearly report to Congress under the WPR. The hard question would arise if the military involvement continued beyond 90 days in the absence of express congressional authorization. Many believe that the WPR limit at this point would be unconstitutional, though it is hard to imagine the Obama administration concluding that. But there is another way around the WPR limit, as the Kosovo case shows. In 2000, OLC opined that, despite the WPR’s specific proviso that authorization to continue hostilities after 90 days cannot be inferred from a congressional appropriation, Congress had in fact authorized the Kosovo intervention in an appropriation, and that this last-in-time indication of congressional intent controlled.
It will be interesting to watch how all this plays out, and whether and how the Obama administration employs the inherent Article II power arguments.
* * *
Relevant OLC Opinions Available on the Web (with many citations herein to older opinions):
The President and the War Power: South Vietnam and the Cambodian Sanctuaries (1970) [Added after original post.]