War Powers Resolution: Libya

DOJ Motion to Dismiss Libya Lawsuit

By Jack Goldsmith
Saturday, August 20, 2011, 6:35 AM

Yesterday the Justice Department filed a memorandum (h/t Charlie Savage) in support of its motion to dismiss the lawsuit by ten members of Congress against President Obama over the Libya operation.  The main argument, and the probable winner, is that the congressional plaintiffs lack standing to sue under Raines v. Byrd, 521 U.S. 811 (1997), and Campbell v. Clinton, 203 F. 3d 19 (D.C. Cir. 2000).  The government also raises prudential objections to the consideration of plaintiffs’ claims.  Notably, DOJ does not defend the merits of the legality of the Libya operation.  That is perhaps because, as Josh Gerstein notes, “DOJ’s Office of Legal Counsel reportedly concluded that the continued involvement of U.S. forces in Libya after 90 days passed violated the War Powers Resolution,” which is “essentially the position taken by the House members in their lawsuit.”  Gerstein further notes that “there's always the possibility that even if the Libya action violates the WPR, the WPR is unconstitutional, but that's an argument the Obama Administration would likely prefer not to make if it can avoid it.”