Executive Power

Ackerman and Hathaway on the Expiration of the WPR's 60-day Time Clock

By Wells Bennett
Wednesday, May 18, 2011, 7:35 PM

In yesterday's Washington Post, Professors Bruce Ackerman and Oona Hathaway editorialized about the "Death of the War Powers Act."

Their piece is provocative, in part because it suggests that the executive has blessed the War Powers Resolution's ("WPR") 60-day time limit as a permissible exercise of congressional power.   (Bobby has a post on the 6o-day provision, and the Obama Administration's evident approach to its expiration, here.)  According to Ackerman and Hathaway, "Jimmy Carter’s Justice Department expressly affirmed the constitutionality of the 60-day clock in 1980 — and its verdict has not been challenged by executive-branch lawyers" (emphasis mine).  The Obama Administration, Ackerman and Hathaway write, has carried on in the Carter tradition, and in two different ways: first, by notifying Congress of its actions in Libya, and publicly stating that the President did so "consistent with the War Powers Resolution;" and second, by refusing to attack the 60-day limit, in an opinion from the Office of Legal Counsel ("OLC") regarding the Libya operation. But now, Ackerman and Hathaway say, the President intends to break with the executive's longstanding practice.  Specifically, they claim that because Obama has not protested the 60-day rule's constitutionality, his plan must be to "paper over the problem with new legal fictions pretending that the time limit doesn’t apply."   That argument's premise struck me as comment-worthy.

I think Ackerman and Hathaway read too much into the "consistent with" phrase, which is hardly unusual fare for a WPR notification, and which does not amount to a glowing endorsement of, or even a comment on, the WPR's relationship to presidential power.  And given that (to my knowledge) OLC was not strictly required to opine on the 60-day provision's lawfulness -- the immediate question instead was whether the President could take action against the Qaddafi regime, without prior authorization from Congress - I would draw nothing from OLC's silence.

The authors also go too far in claiming that Carter's view of the 60-day clock has not since been "challenged by executive branch lawyers." The Reagan and Bush 41 Administrations either ignored or objected to the WPR on constitutional grounds.  Under Bush 43  - and contrary to the Carter position -  OLC also said in one opinion that the WPR could not limit the President's ability to deploy military force in combating terrorism.  Another opinion from the period noted that every President has taken the position that the WPR illegally intruded on his authority as Commander-in-Chief.  That same opinion elsewhere recounted OLC's repeated expressions of doubt as to the statute's constitutionality, as applied in certain contexts.  (For its part, the Clinton-era OLC avoided making conclusive statements about the status of the timing provision under the Constitution.)

The 60-day mechanism's constitutionality thus does not seem to be a settled issue within the executive branch; in fact, there has been healthy debate on the issue.  It strikes me as odd that Ackerman and Hathaway would imply otherwise, in critiquing the Administration's recent actions.