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Surrender (but don’t give yourself away)

- June 3, 2011

Today the House of Representatives will, finally, debate the Libyan air operations, in deciding whether to assert Congress’s authority under the War Powers Resolution (and, implicitly, whether to declare President Obama in violation of that statute.)  Good news for those who champion a Madisonian assertion of legislative “ambition” and lament an invisible Congress, no?

Well, sort of.

Rep. Dennis Kucinich (D-OH, or maybe WA) offered a concurrent resolution in late May that would require US forces to be withdrawn from Libya within fifteen days of the resolution’s adoption by House and Senate (a concurrent resolution does not require presidential signature. As such, there is some doubt, especially after the Supreme Court’s 1983 Chadha decision, about whether it can be binding — but it is the procedure called for by the War Powers Resolution, since otherwise enforcing the WPR would require overriding a presidential veto in most cases.)

You would not expect the House leadership to allow pretty much anything by Dennis Kucinich to come to an actual vote, but such resolutions have privileged status under the text of the War Powers Resolution. While there is still some time left before a vote is required by that law, the House is about to recess for a week.  Thus today’s the day. Actually Wednesday was going to be the day, but as John Bresnahan of Politico notes, “the proceedings were postponed after Republican leaders became concerned it would pass.”

Instead, Speaker John Boehner put forward a competing resolution which will allow lawmakers to scold the president without (they hope) either taking responsibility for the use of force or for ceasing it. Members will get to surrender, without giving themselves (or rather their position) away, the better for later blame avoidance (or, if things go better, credit claiming.)

The resolution notes – without activating the WPR or even mentioning it – that “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 that Obama “has failed to provide Congress with a compelling rationale based upon United States national security interests” for the NATO intervention there. It requires a 21-point report (starting with Obama’s rationale for not requesting Congressional authorization) and, more interestingly, copies of State, Defense, and Justice materials relating to the decision to commit troops.

So, the President is asked to justify his actions, but the actions themselves are at least tacitly endorsed as a result. The closest it comes is to note as a “statement of policy” that no ground forces shall be committed to Libya (something the president has said he doesn’t want to do) and, a bit bizarrely, that “Congress has the constitutional prerogative to withhold funding for any unauthorized use of the United States Armed Forces, including for unauthorized activities regarding Libya.”  Bizarre because, after all, Congress has the constitutional prerogative to withhold funding even for things it has previously authorized…

Importantly, the Boehner resolution is a House-only vehicle, not a concurrent resolution that will even go to the Senate. To be fair, that body seems more likely to retroactively approve the president’s actions, as Sens. John Kerry and John McCain recently proposed.

But in any case, the Boehner alternative forestalls any clarification of the WPR itself and its application in this instance. This is a shame, I think. It’s worth recalling that the George W. Bush administration took the general view that in key areas legislative authorization was unnecessary, unwelcome, and even unconstitutional. If the president had the power to do something, he could do it, no matter what the law might say. This required a generous exegesis of the title “commander in chief,” among other things.

The Obama administration, by contrast, has claimed that it does not need to rely on unilateral authority because it has all the legislatively-delegated authority it needs to do pretty much all of the same things. This requires only a generous reading of the 2001 Authorization for the Use of Military Force (AUMF, Public Law 107-40).

But the Libyan operation does not fit within the AUMF. So, has the Obama administration reverted to some claim of implied or even “inherent’ powers? Sadly, the vagaries of the WPR have allowed the president to duck this question. But Congress didn’t have to.


Breaking news: the House has adopted the Boehner resolution by a vote of 268-145, and rejected Kucinich’s by a vote of 148-265. During debate, House Foreign Affairs ranking member Howard Berman (D-CA) suggested that the House “add one finding: that we declare ourselves to be one big, constitutionally created potted plant.”