Too Bad Administration’s WPR “Hostilities” Gambit Isn’t Working (It Might Have)

by Peter Spiro

So now we have the Administration’s full-dress treatment of its take on “hostilities” under the War Powers Resolution, with Harold Koh’s testimony yesterday before the Senate Foreign Relations Committee.  I think it sets out a good case, well worth a close read.

I actually think it’s good enough that it might have carried the day.  Congress after all has acquiesced to other less than airtight arguments regarding the WPR.  The problem: the conclusion was too far out front of the supporting evidence.  When the Administration informed Congress of its position on the non-applicability of the WPR on June 15, it did so with a couple of sentences.  That allowed Libya skeptics in Congress and elsewhere two full weeks to fill the explanatory vacuum by playing off the plain language, in a “we’re not going to be taken for stupid” mode.

The hole dug in the meantime is just too deep to get out of, not with Senator Corker & Co. firing shots from above.  The result: Congress isn’t going to acquiesce in this one.  Whatever comes out of the Capitol will include some finding that the Libya operation qualifies as “hostilities” for purposes of the WPR.  (The McCain-Kerry Resolution voted out of the SFRC yesterday now includes one, an amendment for which even Senator Kerry was on board.)  That will probably close the door to using the “hostilities” line with respect to future military engagements, at least of this description.

Too bad.  If this gambit had worked, it would have taken a pretty good bite out of the WPR – in my view a good thing.

I’m still having some trouble with a basic question: does anyone think that any President would terminate a military operation he would otherwise continue by virtue of section 5(b)’s 60-day clock in the face of congressional inaction?  If not, what purpose is served by pressing the point?  One expert made the argument to me earlier this week that it deters Presidents from getting into conflicts they don’t think they can get out of within 60 days.  I don’t buy it.  I doubt 5(b) comes up at all in military contingency planning, or even political contingency planning — there are lots of reasons not to get into quagmires, but the WPR isn’t one of them.

At the same time that Koh seemed to be playing up the spirit of the WPR in his live testimony, he also persuasively highlighted how the vision of the 1973 Congress doesn’t really jive with the present day world. (See this from Slate’s William Saletan on Koh’s apparent argument that the WPR doesn’t cover drones.)   And even though Senator Kerry said that the Administration has “affirmed” the constitutionality of the WPR, I think it’s been careful not to concede the point, something brought into relief as President Obama dodged the question at his press conference today.

So the Libya episode just kicks the can down the road again.  We’ll be having the same sort of argument, sooner or later, about why a future Administration is not terminating an operation after 60 days in the absence of congressional authorization.  On balance, I think this hurts Congress more than the executive branch — 5(b)’s toothlessness makes Congress look ineffective and incapable of enforcing laws on the books.  It’ll never get repealed, of course.  It almost makes one want a court to step in, but that’s also unlikely.  I guess the best one can hope for is a whittling away through the practice.

http://opiniojuris.org/2011/06/29/too-bad-administrations-wpr-hostilities-gambit-isnt-working-it-might-have/

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