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Is There Any Law in the Law of War Powers?

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Saturday, May 21, 2011 at 10:54 AM

There is much discussion today about the apparent decision of the Obama Administration to ignore the provision in the War Powers Resolution that requires that the President either terminate the use of military force or obtain congressional authorization after 60 days.  The President has stated in a letter that he would welcome a congressional authorization for the continuing military operations in Libya but he has given no indication that he views such an authorization as required.

This discussion deflects attention away from the fact that the Administration was already acting contrary to the views of Congress expressed in Section 2(c) of the War Powers Resolution, which states that:

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 pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

If this is a correct statement of constitutional law (and many legal academics believe that it is), then the Obama Administration has been acting illegally well before today, since the military operations in Libya were obviously not in response to an “attack upon the United States, its territories or possessions, or its armed forces.”

These issues have prompted me to reflect on the extent to which the war powers debate actually presents a question of law, constitutional or otherwise.  One way of thinking of law is the way that Holmes described it — as a prediction of what the courts will do.  But the problem in the war powers area is that there appears to be no realistic possibility that the courts will review the legality of presidential uses of force.  The stakes are too high, the legal materials are too unclear, and the danger that judicial pronouncements will be disregarded is too real.

Is there a law of war powers in the absence of the prospect of judicial review?  Certainly legal academics seem to think so, since they have felled many trees writing about the topic.  Among other things, numerous law review tomes have been written in an effort to tease out what the constitutional Founders might have understood about the distribution of war authority.  I hope I am not being disloyal to my profession in suggesting that whether law professors spend a lot of time writing about something might not be the best test for whether it is operating as law.

A better test is probably whether the law of war powers influences the behavior of governmental actors.  At least in the post-World War II era, it seems difficult to conclude that it does, particularly if one believes that this law requires congressional authorization for war-making.  The Executive Branch sometimes seeks congressional authorization for military operations, often does not, and never acknowledges a legal obligation to do so.  Congress sometimes acquiesces in unauthorized military operations and sometimes pushes back but as an institution it rarely engages with the issue on constitutional terms. This is not to suggest that presidents are unconstrained in their ability to use force, but it is to suggest that the constraints appear to be primarily political rather than legal in nature.

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