The Libya Debate Heats Up

Speaker of the House John Boehner sent a letter (see below) to the White House today saying that President Obama will be in violation of the War Powers Resolution after Sunday unless U.S. participation in military operations in Libya ends or Congress authorizes the mission. Sunday marks ninety days since Operation Odyssey Dawn began. The War Powers Resolution grants a president at most ninety days to initiate and conduct a military operation. (If the United States is attacked first, the president does not need congressional authorization to respond. That, of course, was not the case with Libya.)

The language in Boehner’s letter is relatively tough as these things go. He notes that "the Constitution requires the President to ’take care that the laws be faithfully executed,’ and one of those laws is the War Powers Resolution." In other words, the speaker looks ready to argue that the president is violating his oath of office if Sunday comes and goes without either a congressional authorization or an end to U.S. participation.

Boehner’s letter anticipates an obvious possible response from the White House:

Given the mission you have ordered to the U.S. Armed Forces with respect to Libya and the text of the War Powers Resolution, the House is left to conclude that you have made one of two determinations: 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.

As I have noted before, a lot of lawyers would be happy to make either case. Indeed, many (but not all) of the men who have sat in the Oval Office since the War Powers Resolution was passed in 1973 over Richard Nixon’s veto have argued that the law is unconstitutional. If the president takes either of the two courses that Boehner lays out—or some third course—then pretty much everyone with a law degree will weigh in with who has the better of the legal argument. Of course, as I have also noted before, the only lawyers who matter, the nine justices on the Supreme Court, aren’t likely to weigh in. And the legal debate will have one odd feature: many of the lawyers who argue that the president has inherent powers as commander in chief to initiate hostilities will have worked in Republican administrations, and many of those who argue that he doesn’t will have worked in Democratic ones.

So should we expect a definitive showdown any time soon? No. Boehner’s letter demands information from the White House but doesn’t say what he will do if he doesn’t get an answer he likes. Unless public opposition dramatically hardens and intensifies, and the audience for Boehner’s letter is probably as much the American people as Obama, there is zero chance that Congress will pass a stand-alone bill anytime soon to end operations in Libya. Senate Democrats presumably would sit on such a bill; after all, the Senate Foreign Relations Committee is scheduled to debate a non-binding resolution this Thursday to express support for military action. Even if a bill to end the Libyan intervention passed, Obama would almost certainly veto it. Congress has overridden one foreign policy veto since the War Power Resolution became law thirty-eight years ago.

The more likely outcome if Qaddafi hangs on is that critics will use the annual defense appropriations bill to bar funding for any fighting in Libya. The defense appropriations bill is also subject to a veto, but Obama can’t veto an individual provision. He has to veto the entire bill. He might not want to do that because it would jeopardize other military activities. Yes, all of this is speculative, maybe even far-fetched. As the law of anticipated reactions holds, presidents assess what Congress is likely to do and modify their behavior accordingly. So Obama would have a strong incentive to find a way to end the Libyan intervention before he found himself in a showdown with Congress in Washington’s version of the OK Corral.

The president could avoid a final confrontation by halting U.S. participation in Libya. He could also try to avoid it by winning. So one thing to watch in the days to come is if the White House decides to turn up the pressure further on Qaddafi.

Here is the text of Speaker Boehner’s letter:

June 14, 2011

The President

The White House

1600 Pennsylvania Avenue, Northwest

Washington, DC 20500

 

Dear Mr. President

Five days from now, our country will reach the 90-day mark from the notification to Congress regarding the commencement of the military operation in Libya, which began on March 18, 2011. On June 3, 2011, the House passed a resolution which, among other provisions, made clear that the Administration has not asked for, nor received, Congressional authorization of the mission in Libya. Therefore, it would appear that in five days, the Administration will be in violation of the War Powers Resolution unless it asks for and receives authorization from Congress or withdraws all U.S. troops and resources from the mission.

Since the mission began, the Administration has provided tactical operational briefings to the House of Representatives, but the White House has systematically avoided requesting a formal authorization for its action. It has simultaneously sought, however, to portray that its actions are consistent with the War Powers Resolution. The combination of these actions has left many Members of Congress, as well as the American people, frustrated by the lack of clarity over the Administration’s strategic policies, by a refusal to acknowledge and respect the role of the Congress, and by a refusal to comply with the basic tenets of the War Powers Resolution.

You took an oath before the American people on January 20, 2009 in which you swore to "faithfully execute the Office of President" and to "preserve, protect and defend the Constitution of the United States." The Constitution requires the President to "take Care that the Laws be faithfully executed," and one of those laws is the War Powers Resolution, which requires an approving action by Congress or withdrawal within 90 days from the notification of a military operation. Given the mission you have ordered to the U.S. Armed Forces with respect to Libya and the text of the War Powers Resolution, the House is left to conclude that you have made one of two determinations: 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. The House, and the American people whom we represent, deserve to know the determination you have made.

Therefore, on behalf of the institution and the American people, I must ask you the following questions: Have you or your Administration conducted the legal analysis to justify your position as to whether your Administration views itself to be in compliance with the War Powers Resolution so that it may continue current operations, absent formal Congressional support or authorization, once the 90-day mark is reached? Assuming you conducted that analysis, was it with the consensus view of all stakeholders of the relevant Departments in the Executive branch? In addition, has there been an introduction of a new set of facts or circumstances which would have changed the legal analysis the Office of Legal Counsel released on April 1, 2011? Given the gravity of the constitutional and statutory questions involved, I request your answer by Friday, June 17, 2011.

From the beginning, the House of Representatives has sought to balance two equal imperatives regarding Libya which have been in direct contradiction: the House of Representatives takes seriously America’s leadership role in the world; our country’s interests in the region; and the commitments to and from its steadfast allies. At the same time, strong concern and opposition exists to the use of military force when the military mission, by design, cannot secure a U.S. strategic policy objective. The ongoing, deeply divisive debate originated with a lack of genuine consultation prior to commencement of operations and has been further exacerbated by the lack of visibility and leadership from you and your Administration.

I respect your authority as Commander-in-Chief, though I remain deeply concerned the Congress has not been provided answers from the Executive branch to fundamental questions regarding the Libya mission necessary for us to fulfill our equally important Constitutional responsibilities. I believe in the moral leadership our country can and should exhibit, especially during such a transformational time in the Middle East. I sincerely hope the Administration will faithfully comply with the War Powers Resolution and the requests made by the House of Representatives, and that you will use your unique authority as our President to engage the American people regarding our mission in Libya.

Respectfully,

John A. Boehner