Would Libya No-Fly Zone Require Congressional Authorization?
Bruce Ackerman and Oona Hathaway say yes; Jack Goldsmith, no. I’m with Jack on this one. Especially as authorized by the UN Security Council, there’s solid precedent for proceeding without an advance congressional okay. As Jack points out, Kosovo is probably the closest analogy in terms of the scope of the operation (a case in which authorizing legislation was voted on and defeated). Somalia evidences some constitutional significance to the UNSC authorization, reflected (against type) in this OLC memo from Bush I OLC head Tim Flanigan, under cover from AG Bill Barr (hardly a softy on international law).
Whatever argument one might make for authorization, it certainly doesn’t require a formal declaration of war, which Richard Lugar is reportedly asserting (so wacky it’s almost hard to believe that the reporting is accurate). Lawprof congressman Tom Campbell introduced a joint resolution declaring war against Serbia during the Kosovo bombing, which was defeated by a vote of 427-2. This aside, we can expect a debate on the authorization question. Republicans will now be asserting congressional power; Democrats, executive prerogatives; you are where you sit.