War Powers Resolution: Libya

The Boehner Ultimatum Makes No Legal Sense

By Jack Goldsmith
Tuesday, June 14, 2011, 7:58 PM

Today House Speaker John Boehner sent President Obama a letter charging that next Sunday, which will mark 90 days after the Libya intervention began, “the Administration will be in violation of the War Powers Resolution unless it asks for and receives authorization from Congress or withdraws all U.S. troops and resources from the mission.”  The letter also seeks clarification of the Administration’s legal position.

The problem with Boehner’s letter is that it assumes that the WPR clock for terminating the introduction of forces into hostilities is 90 days long.  But in fact it is 60 days long, and can be renewed for an extra 30 days only “if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.”  WPR, § 5(b) (emphasis added).  The President made no such certification, nor could he given the facts of the Libya intervention.  Therefore either the WPR required withdrawal of U.S. forces around May 20th, after 60 days, or there is some Obama Administration theory – still unarticulated – under which the termination provision was not triggered.  But I see no circumstance under which the termination provision is triggered next Sunday, 90 days after the Libya intervention began.

This is an unfortunate error in a letter that charges the President with not paying adequate attention to the WPR.  It is also an obvious error.  I wonder why the Speaker (or his advisors) made it?  Perhaps to distract from the fact that responsible congressional pushback against the President’s Libya intervention under the WPR should have come at least a month earlier.