Let’s Not Confuse War Powers with the War Powers Resolution

by Peter Spiro

The controversy over the Administration’s interpretation of the War Powers Resolution has some people conflating that issue with the broader one of when the President can use force without congressional authorization.

This isn’t surprising, since the Administration has used a similar tack in both contexts.  With respect to the War Powers Resolution, the Administration claims the Libya operation does not constitute “hostilities” for purposes of the law.  With respect to the Constitution, it claims that the Libya operation does not qualify as a “war”.  One can be right where the other is not.  It’s too bad that in the popular, even elite, imagination, they are being intertwined.

The constitutional law of war powers can be reduced to three basic propositions:

1.  For minor engagements, measured in terms of resource commitments and risk of casualties, Presidents can go it alone.  This is why the constitutional carping about initiating the Libya operation without congressional authorization had no traction.  OLC’s memo on the question was persuasive.

2.  For major engagements, Presidents must as a constitutional matter have Congress on board from the top.  That’s why both Bush I & II secured congressional authorization before initiating military action in Kuwait and Iraq.  It’s why comparisons between Bush II’s securing advance approval for Iraq and Obama’s failure to do so for Libya are misplaced.  The two episodes are constitutional apples and oranges.

3.  Congress has the power to terminate any particular military engagement.

The War Powers Resolution shouldn’t change any of that.  It doesn’t for instance give Presidents a 60 day window in which to launch major engagements without congressional approval (either Bush could have unilaterally introduced forces into the Persian Gulf consistent with the Resolution, but neither would have passed constitutional muster).  On the other hand, it can’t constrain Presidents to terminate military operations without affirmative congressional action, as the 60-day clock would require.  From a functional perspective, the default termination provision leaves important military decisionmaking intolerably hostage to the probabilities of congressional inaction (Kosovo as exhibit A).

That’s getting lost in the debate over the meaning of “hostilities”.  Even if the Libya operation does qualify as such for purposes of the law, it doesn’t mean that the law is constitutional.  Given the unfavorable response to the statutory argument (for the latest entries, see Bruce Ackerman, Richard Epstein, and Jonathan Schell), perhaps the constitutional defense would have been the better.  It will be tough at this point to retreat to that position, even though the Administration has not expressly conceded the point.

Congress, meanwhile, has the power affirmatively to direct the termination of US participation in the Libya operation, now or at some date certain in the future (as Jack Goldsmith reminds us was done with Lebanon and Somalia).  But the WPR, and the putative failure to comply with it, is essentially irrelevant in that context.  Or so one would hope.

http://opiniojuris.org/2011/06/21/lets-not-confuse-war-powers-with-the-war-powers-resolution/

5 Responses

  1. Response…

    “For major engagements” — what does this mean?  In any event, no, under the Const. the President does not have to have Congress’ approval from the start (The Prize Cases) or at all if the President is faithfully executing treaty authority to use military force (e.g., in self-defense under UN 51 or to implement a UN SC res. under arts. 24(2), 25, 39, 42, 48).
    This constitutional matter is necessarily built into the WPR because of WPR’s sections 2 and 8.  Moreover, Bas, Talbot, and Charming Betsy stand in significant oppostion to Obama’s read of the word “hostilities.”  Perhaps the Admin. will come around to the treaty base of authority, although the SC res. was at least mentioned in support or presidential power.  See http://jurist.law.pitt.edu  — op ed.

  2. Yes, Lebanon and Somalia. Those worked out so well. Let’s do it again!

  3. Unless I’m quite confused, the “doesn’t” in the second sentence of the paragraph immediately after the # “3.” of the three numbered propositions ought to be a “does.” To wit: “The War Powers Resolution shouldn’t change any of that.  It does for instance give Presidents a 60 day window in which to launch major engagements without congressional approval”

    Confirm?

  4. Response…
    Note that sections 2 and 8 of the WPR necessarily require consideration of the constitutional authority of the President, especially the President’s constitutionally-based authority and duty faithfully to execute treaties of the United States.

  5. Michael: What I meant: the WPR doesn’t give the President any additional constitutional power, so the “doesn’t” stands as is (even though the statute ostensibly gives him 60 free days, it doesn’t actually, because that’s inconsistent with the constitutional allocation).  Sorry if it’s obtuse!

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