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War Powers Update: No Hostilities

- June 15, 2011

In keeping with previous posts on the subject (e.g., here, here, and here) it’s worth noting today’s updates on the application of the War Powers Resolution to the American involvement in Libya.

First came House Speaker John Boehner’s missive to President Obama. (A copy is available here.)  Boehner noted that the WPR’s time period was up (indeed, though he didn’t say so, it’s more than up — since for the WPR’s 60-day “clock” to be extended to 90 days requires the president to make certain certifications he has not made.)  He then argued that the WPR was lawfully passed under the Constitution, that Pres. Obama swore an oath to uphold the law, and that, therefore, “either you have concluded the War Powers Resolution does not apply to the mission in Libya, or you have determined the War Powers Resolution is contrary to the Constitution.”

Later in the day, the administration chose Option A.

That is, it has decided that the Libyan operation does not constitute “hostilities” under the meaning of that term in the WPR.

This would be problematic in the dictionary but, fortunately for the administration, less so in the WPR. “Hostilities” are not defined in that statute (not much is); and the courts are unlikely to get involved, especially without definitive legislative action.  Indeed, State Department legal adviser Harold Koh, the key player here, knows this well.  In 1990, in the wake of the Iran-contra affair, he wrote The National Security Constitution, a book exploring the “historical pattern of executive circumvention of legislative constraint.”

The WPR was Koh’s “case in point” for Congressional failure to successfully rein in the presidency – for reasons of “legislative myopia, inadequate drafting, ineffective legislative tools, and an institutional lack of political will.”  He noted that the WPR allowed the president to avoid consultation (even when the 60-day limit was reached) —  and gave “the president too much freedom to make covert and short-term war and to commit military forces overseas without a clear purpose.”

One can’t help but notice that in 1990, Koh approvingly cited John Hart Ely’s criticism of judiciary for its refusal to define “hostilities” in the context of the WPR. And he suggested a number of legislative amendments to fix the WPR’s “defects” identified above and make it more likely to achieve its ends.

Twenty years on, though, he is presumably grateful that Congress and the courts have paid their usual attention to academic suggestions for reform.


Coda (of 20 June 2011): over the weekend we learned that the President had other legal guidance as well as Koh’s, namely from the normally-definitive Office of Legal Counsel in the Justice Department.  In the Bush years, OLC generated what the president wanted to hear; now, apparently, when it does not, it is ignored. Which is more problematic? Adam Serwer has a nice take on that question here.