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Kent Greenfield

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Obama, Libya, and Executive Power

Posted: 05/20/11 07:14 PM ET

Up until this week, I would have said that George W. Bush was the most aggressive president in modern times in exercising executive power. Now, I can honestly say President Obama is giving "W." a run for his money. This week President Obama is creating a dangerous precedent that will be cited by future presidents whenever they want to use military force without congressional oversight.

Friday May 20th marks the 60th day since the president notified Congress that he committed U.S. military forces in Libya. Under the War Powers Act (WPA), the president may order military action on his own under certain conditions. But the WPA then gives the president 60 days to gain congressional authorization; if none is forthcoming, the president must then withdraw all forces within 30 days.

Back in March, the president's decision to use military force in Libya seemed to make sense. Our military might was used for beneficial purposes: coming to the aid of Libyan rebels and preventing what many worried would be a massacre of civilians in Benghazi by troops loyal to Gaddafi.

The president notified Congress, as is required under the WPA. The official letter from the White House followed the requirements of the WPA, describing the basis, scope, and expected duration of the military action. But the President never did the next thing required by the Act: ask for congressional authorization.

I'm not sure why. Obama enjoyed public support for the involvement, he had some prominent Republicans (including John McCain) on his side, and a request for authorization would have put House Republican leadership in a tough political bind if they resisted.

Now, Obama is the one in a bind, and it's of his own making.

The War Powers Act is law, and has been since 1973. The Act is not without its constitutional problems. It arguably bypasses the constitutional mandate that Congress declare war before engaging in hostilities. Some legal scholars have argued that it improperly constrains the president's Commander-in-Chief power.

Nevertheless, every president since Nixon has followed its terms, and both the president and Congress have acted consistently with it. Given the vagueness of the constitutional provisions about war powers, the WPA has proven to embody a useful understanding of how the Executive and Congress should share military responsibilities in a world in which the initial decisions to fight often need to be made quickly and in secret, but the decisions to sustain military action is something that ought be shared among democratically accountable branches. The Framers' system of checks and balances is there for a reason, after all.

So Obama can ignore the WPA only if he thinks it doesn't apply or if he is convinced that it is an unconstitutional limitation on his powers. The former assertion is odd indeed. We are certainly involved in military action. The fact that NATO is now putatively in control of the operation does not seem to avoid the issue, especially when the top of NATO's chain-of-command is an American and when American service members continue to drop bombs, fire missiles, and control drones.

An assertion that the WPA is an unconstitutional limitation on executive power would be even less convincing at this point. One might assume that the president's Commander-in-Chief power allows him to use military force unilaterally when necessary in an emergency, or even in limited circumstances to protect national interests when time is of the essence. The initial foray into the Libyan hostilities might be justified this way, WPA or not. But such executive authority would wane over time, as a shared role by Congress became more realistic. Otherwise, the president could commit the nation to hostilities for an indefinite time, with little meaningful oversight.

So on Saturday, the constitutional and statutory clock will start ticking. If Obama doesn't ask for congressional endorsement or end the nation's involvement within thirty days, then he will be asserting himself in a way that no president has in modern history. Courts won't step into this constitutional hornet's nest. In this area of constitutional law, what matters most is not what courts say but what happens in practice. For the last 40 years, the practice has been to follow the WPA. Apparently that's about to change.

Progressives might not worry too much about all of this while Obama is in charge. But this precedent won't vanish when a president Romney, Pawlenty, or Palin is in the Oval Office. Undermining the WPA could be one of Obama's lasting legacies, and it will not be a good one.

 
 
 

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