War Powers

Kerry-McCain Resolution on Libya [Updated]

By Jack Goldsmith
Tuesday, June 21, 2011, 6:32 PM

Senators Kerry and McCain, and eight other prominent Senators, introduced a Resolution on Libya today.  The Resolution authorizes the President “to continue the limited use of the United States Armed Forces in Libya,” for one year.  It also states that Congress “does not support” ground forces.  And it requires the President to “consult frequently” with Congress, and in particular to provide a “full and updated explanation of the President’s legal and constitutional rationale for conducting military operations in Libya consistent with the War Powers Resolution.”

Earlier today I speculated on the relevance of the 1983 Lebanon and 1993 Somalia analogies for the Libya case.  In the Lebanon Resolution Congress pushed back against President Reagan’s narrowing interpretation of the WPR “hostilities” trigger by noting that Congress had determined “that the requirements of section 4(a)(1) of the War Powers Resolution became operative on August 29, 1983,” which was the date the Marines were first attacked in Lebanon.  (President Reagan contested this interpretation in his signing statement.)  By contrast, today’s Senate Resolution makes no adverse finding on the WPR, does not state its view on how the WPR should be interpreted, and does not even implicitly question the President’s reading of the WPR.  It simply requires the President to explain his views more fully.  In addition, the Resolution does not (a) condemn or question the constitutionality of the original use of force, (b), prohibit the introduction of ground forces, or (c) assert that the President lacks authority to continue the intervention in Libya after one year.  If this Resolution became law (I doubt it will), it would through its various silences in effect validate the constitutional and statutory arguments made to date by the Obama administration in connection with its war powers in Libya.  Even if it only passes the Senate and not the House (where I doubt it could pass in this form), the President will use it as political if not legal support for his policies.  The White House and presidential unilateralists should be happy with this development.

A final note.  As a technical matter the Resolution does not satisfy Section 8(a)(1) of the WPR, which provides:

SEC. 8. (a) Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred--

(1) from any provision of law . . . , unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution.

This provision requires an authorization to specifically reference the WPR to effectively stop a WPR clock from running.  The Senate Resolution does not do that.  (By contrast, the Lebanon authorization states: “The Congress intends this joint resolution to constitute the necessary specific statutory authorization under the War Powers Resolution for continued participation by United States Armed Forces in the Multinational Force in Lebanon.”)  I do not know if the omission is purposeful or not.  But it does not matter.  Under a Clinton-era OLC opinion, the 1973 Congress that drafted the WPR cannot control how the 2011 Congress chooses to authorize the president to use force.  Thus the Executive will conclude that the Resolution, if it becomes law, authorizes the use of force and thereby effectively supersedes the legal effect of the WPR clock.

Update: Josh Rogin has many more interesting details on the Senate’s thinking that render the above analysis provisional, to say the least.  A few tidbits:

  • The “resolution's language is only the starting point for a Senate debate that will feature resolutions and amendments from multiple senators, each of whom has their own ideas of how to express the Senate's position on the Libya war.”
  • “Even the three senators who are leading the resolution drive can't agree on whether Obama's adventure in Libya is legal in the first place.”
  • Senator Lugar says that Kerry’s “will not be the only resolution offered” and that next week’s SFRC hearing will explore “why there is any conceivable justification for the war at all.”
  • The Senate will not debate any Libya Resolution before July 12 at the earliest.