War Powers Resolution: Libya

Marty Lederman's analysis of Lugar amendment to Kerry-McCain resolution

By Raffaela Wakeman
Wednesday, June 29, 2011, 11:56 AM

Marty Lederman offers this analysis over at Balkinization of two critical amendments proposed by Senator Richard Lugar and adopted by the Senate Foreign Relations Committee yesterday.

Lederman points out that the first of Lugar's amendments would legally restrict the use of ground forces, which goes further than the language in the original Kerry-McCain resolution. The second of his amendments, however, has far greater significance in the debate over President Obama's authority under the War Powers Resolution:

The effect of this second Lugar Amendment, were it to become law, would be not only to reflect a congressional disagreement with the President's views on whether the Libya operations since April 4th have constituted "hostilities" for purposes of the War Powers Resolution, but also to establish going forward, as a matter of law, that those operations constituted "hostilities"--an interpretation of the the WPR that would (unlike the Executive's contrary reading) be binding in the future. Accordingly, not only would it stand as a legislative rebuke to the President's construction of the statute, but in addition it would establish a legal precedent on the meaning of the term "hostilities" that the Executive would be compelled to take into account in assessing the application of the WPR 60-day clock for future military operations. In that respect, the Kerry/McCain resolution, with this Lugar Amendment, would be both an authorization of the current Libya operation, and a statutory constraint on the Executive--a rare congressional pushback that serves, as a practical matter, to "enforce" the WPR.