War Powers Resolution: Libya

WPR Influence in Libya Action?

By Jack Goldsmith
Thursday, May 26, 2011, 6:20 AM

Last Thursday the Washington Post editorial page opined that President Obama should either seek congressional authorization for the military actions in Libya, or “should inform Congress and the public about his intention of going forward with the campaign, openly challenge the constitutionality of the War Powers Resolution and work toward its repeal or amendment.”  The editorial described this choice as a “dilemma,” and added that “ignoring the War Powers Resolution — or offering disingenuous arguments about why it does not apply — is not the answer.”

This morning the Post’s editorial board chastises the Obama administration for not giving more military support to Great Britain and France in the action in Libya.  It adds: “[T]he strain on British and French forces is growing, and the president appears to have no substantial reason to deny the allies’ request, other than to prove the ideological point that the United States need not lead every NATO military intervention.”

The administration might respond to both editorials by arguing that it is complying with the WPR and the WPR is a substantial reason not to do more in Libya.  The administration’s theory of compliance with the WPR, not yet publicly articulated, is probably that the United States’ relatively low-level involvement in Libya does not trigger the statute.  If this is what the administration is thinking, then not providing additional support to Great Britain and France might be driven by a desire to stay under whatever threshold of military involvement it thinks would implicate the WPR.  (It might also be driven by a desire to maintain the original legal theory that this military action was not a “war” that required congressional authorization).

This is speculation.  It might be ideology or politics that is holding the administration back in Libya, as the Post suggests.  But it might also be law, to some degree.  If so, then an episode that so many people think is the first overt violation of the WPR’s 60-day limit might in fact be the first instance in which the 60-day limit has actual bite.  Indeed, the Libya action could be both a violation of the WPR (if the administration’s legal theory is wrong) and the first time the WPR has had influence in an ongoing military action.