Congress And The War Powers Resolutions: Libya Airstrikes Constitutionally Legit
Under the Constitution, only Congress has the power to “declare war.” The president, however, has ample authority to use military force without a “declaration of war” where the anticipated U.S. engagement in hostilities is limited in its expected nature, scope and duration. Presidential administrations of both political parties have recognized a long tradition that supports this use of force. And Congress has acknowledged its legitimacy as well.
The authority for the president to act without specific congressional authorization is set out in two opinions of the Office of Legal Counsel. The first, issued in 1994, defends the plan to send 20,000 troops into Haiti and the second, issued in 1995, provides the legal authority for the use of air power in Bosnia. (I should note that I was head of OLC at the time these opinions were issued).
As these opinions note, the structure of the War Powers Resolution enacted by Congress necessarily presupposes the existence of unilateral presidential authority to deploy armed forces “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” The resolution requires that, in the absence of a declaration of war, the president must report to Congress within 48 hours of introducing armed forces into such circumstances and must terminate the use of U.S. armed forces within 60 days unless Congress permits otherwise. This structure makes sense only if the president may introduce troops into hostilities or potential hostilities without prior authorization by the Congress: the resolution regulates such action by the president and seeks to set limits to it.
President Obama has fully complied with the reporting requirements set out by Congress in the War Powers Resolution. To be sure, the resolution declares that it should not be construed to grant any new authority to the president. But it obviously assumes that the president already had such authority, and sets out reporting (and subsequent withdrawal) requirements when he exercises that power.
It has been 15 years since these OLC opinions were issued and widely discussed. In that time, Congress has continued to provide for military forces to be deployed throughout the world without placing any restrictions that would preclude their use in circumstances such as those presented by Haiti, Bosnia and Libya. Under well-established precedents endorsed by both the executive and congressional branches of the national government, there is no doubt of the legitimacy of the president’s use of force in Libya.
By: Walter Dellinger, Visiting Professor of Law, Harvard University; Former Assistant Attorney General and Head, Office of Legal Council. Article published in The Arena, Politico, March 22, 2011
No comments yet.
Share This Blog
mykeystrokes.com- “The Unrelenting Hostility Of Washington’s Courtier Press”: The Media’s Crusade Of Scandals Against Hillary Clinton July 28, 2016
- “Endorsing This Philistine”: The Christian Right Has Surrendered To Trump July 24, 2016
- “Cop Killers Serve No Cause”: It’s Getting To The Point Where No Lives Matter July 24, 2016
mykeystrokes.com 
Share your comment