UPDATED: Obama’s Approach to U.S. Military Action in Libya Has Been Legal But Unwise

By Ken Falkenstein | Friday, June 3rd, 2011 | Policy

On March 19, 2011, I posted to my now defunct blog, Ken’s Colloquium, an article about the constitutionality and legality of President Obama’s deployment of American forces against Libya.  I wrote that President Obama was not constitutionally required to seek congressional approval for the action and that the War Powers Act of 1973, which does contain such a requirement, is unconstitutional.  You can read my full analysis here.

I also wrote that although Obama was not required to seek congressional approval, he should do so for numerous practical reasons:

As discussed above, Congress must approve funding for this mission, and the Congress will be more likely to grant the President’s funding requests if the Members understand and feel like they were part of the decision to engage in this adventure.  Furthermore, although the President does not need a resolution of approval from Congress to take this action in Libya, if he had sought and obtained one, he would have enjoyed political cover if and when things go wrong – as they almost always do in combat in unforeseeable ways.  By acting alone, President Obama now owns the mission, for better or for worse.  If things do not go well, he will be an easy political target by Members of Congress who have no political investment in this mission.  And this vulnerability by the Commander-in-Chief also creates a vulnerability for the thousands of military personnel involved in the mission under his command.

For those reasons, President Obama should have consulted with Congress and should have sought a vote of confidence for the mission.  And it is still not too late for him to do so.

As of today – nearly 3 months since I wrote those words – President Obama has not sought congressional approval for the Libya action.  In fact, he has outright refused to seek congressional approval, dishonestly arguing that our actions, which include bombing Libyan forces, are so passive that the War Powers Act does not apply to them.  (Notably, like most leftists, Obama does not argue that the War Powers Act is unconstitutional, even though that is the real – and only – legitimate argument available to him for not complying with it.)

Today, the U.S. House of Representatives will vote on a non-binding resolution by Speaker John Boehner that states

The President has not sought, and Congress has not provided, authorization for the introduction or continued involvement of the United States Armed Forces in Libya.  Congress has the constitutional prerogative to withhold funding for any unauthorized use of the United States Armed Forces, including for unauthorized activities regarding Libya.

As summarized by ABC News, the Boehner resolution contains two alternative demands and threatens to cut off funding for the mission if at least one of these demands is not met within two weeks:

Boehner is giving the president two weeks – until the Pentagon Appropriations bill comes up – to either:

a)  Ask for authorization for the military intervention in Libya, or

b)  Figure out how to disengage the US from the NATO operation in Libya.

These demands are squarely within the Congress’ constitutional prerogatives.  Although, the president, as commander-in-chief of the military, has the inherent authority to deploy our forces into combat without seeking congressional approval, the Congress has the inherent authority to decide whether or not to provide funding for the mission and to set conditions on the provision of such funding.  As I wrote in my March 19, 2011, article:

Although the Constitution gives Congress the power to declare war, it does not prohibit a President from sending our armed forces into combat without a declaration of war.  The Constitution makes the President the Commander-in-Chief of the armed forces, and as such, he has the constitutional authority to deploy them as he will.  The Constitution gives the Congress the power of the purse, which is a significant check on the President’s power to make war.  If Congress disapproves of a President’s deployment of our armed forces, it can refuse to fund the mission or cut off funding at any time.

The Boehner resolution is expected to pass.  It will be interesting to see President Obama’s response, and, if he fails to meet either of the House’s demands, what action the House will take regarding funding for the Libya mission.

UPDATE: The House of Representatives has now overwhelmingly passed the Boehner resolution by a vote of 268-145.  A separate and tougher resolution offered by Rep. Dennis Kucinich (D-OH) that would have demanded that Obama immediately begin withdrawing from Libya failed by a vote of 148-265.  The 148 members who voted for the Kucinich resolution consisted of 59 members who voted against the Boehner resolution and 89 Members who voted for both resolutions.  Fully 324 members – three-fourths of the members of the House – voted for at least one of the resolutions, including 91 Democrats – nearly half of the Democrat Caucus.

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