House Libya Resolution: Pretty Tame Stuff

by Peter Spiro

Here’s the text of the resolution passed in the House this afternoon on Libya, as introduced by Speaker Boehner.  It’s not insignificant, as an institutional pronouncement, even though it’s non-binding. It amounts to a kind of soft law.  The resolution provides that “the President shall not deploy, establish, or maintain the presence of units and members of the United States Armed Forces on the ground in Libya unless the purpose of the presence is to rescue a member of the Armed Forces in imminent danger.”  Congress is clearly unhappy with the continuing operation, and it’s going to be tougher for the White House to give it the brush-off with this marker on the books.  It may be non-binding, but I wouldn’t be putting troops on the ground without a congressional okay, in advance.

But the resolution doesn’t assert that Obama has acted unlawfully in a general way or even that he’s violated the War Powers Resolution in particular (by continuing the action without specific congressional authorization beyond the 60-day clock).  From the Boehner resolution’s findings, in section 4:

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.

That’s a pretty limited assertion of congressional power.  Just about everybody agrees that Congress can use the purse strings to curb the use of force by the executive branch.  This action evidences an equilibrium, not instability, in war powers practice.

http://opiniojuris.org/2011/06/03/house-libya-resolution-doesnt-resurrect-war-powers-resolution/

3 Responses

  1. Response…
    And the President does not need congressional approval in any event.  See my op ed at Jurist
    http://jurist.law.pitt.edu/forum

  2. Jordan, you can’t be serious…
     
    How do you begin to square that assertion with the statement you just made in response to Kevin’s latest post:
     
    …other former officials are being prosecuted in international and domestic fora for their international criminal activity. It is also increasingly obvious that impunity often leads to further criminal conduct and social violence. However, we do live in a time when impunity is too rampant, especially within the United States.”
     
    For anyone who missed the House debate on this, where Jordan’s opinion was repudiated by an almost-unanimous group of federal legislators from both parties, here’s the C-SPAN coverage.



    The debate on the rule (a rule to block floor amendments and to set a limited time for debate on the two Libya resolutions – one binding, one non-binding) begins about 10 minutes in, and, after a vote passing the rule, the debate on the merits of the two resolutions begins at about 1:50 into the recording.  [The rule debate is most notable for the flatly-inaccurate assertion by the veteran chairman of the House Rules Committee, David Dreier of California, that the 1973 War Powers Resolution “is not a law.”]

  3. Senators Jim Webb of Virginia and Bob Corker of Tennessee have now picked up that “limited assertion” of congressional power from the House.  But they’ve gone one step further, by formally submitting a Joint Resolution (S.J.Res. 18, referred to the  Committee on Foreign Relations, on which they both sit) intended, unlike Speaker Boehner’s resolution, to be considered by the other body, which would be binding in part:
     
    “Whereas 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; and

    Whereas Congress has the constitutional prerogative to withhold funding for any unauthorized use of the United States Armed Forces, including for unauthorized activities regarding Libya: Now, therefore, be it

    Resolved by the Senate and House of Representatives of the United States of America in Congress assembled” …[five sections follow]

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.