Today marks a significant milestone in a contest between the executive and legislative branches of this nation’s government that began nearly four decades ago, for it looks as if President Obama will not be asking Congress to permission to continue America’s military engagement in Libya that began in March, as is specified under the War Powers Resolution.
This resolution was enacted by Congress in 1973 and was in part a response to what many liberals perceived as a tendency for the use of military force to be unilaterally employed by what the late Arthur Schlesinger termed “the imperial Presidency.”  It specified that the President could deploy military force, for whatever reason, for a period of just sixty days without first obtaining the authorization of Congress (except in the event of a direct military attack upon the United States or its armed forces), and that such authorization had to be sought, and Congress had to grant it, for such deployment to continue at the end of that time; otherwise the action had to be concluded within an additional thirty days.

President Nixon vigorously objected to the resolution and vetoed it on October 24, 1973.  His message read in part:

[The resolution] would, for example, strike from the President’s hand a wide range of important peace-keeping tools by eliminating his ability to exercise quiet diplomacy backed by subtle shifts in our military deployments. It would also cast into doubt authorities which Presidents have used to undertake certain humanitarian relief missions in conflict areas, to protect fishing boats from seizure, to deal with ship or aircraft hijackings, and to respond to threats of attack. Not the least of the adverse consequences of this resolution would be the prohibition contained in section 8 against fulfilling our obligations under the NATO treaty as ratified by the Senate. Finally, since the bill is somewhat vague as to when the 60 day rule would apply, it could lead to extreme confusion and dangerous disagreements concerning the prerogatives of the two branches, seriously damaging our ability to respond to international crises.

But this veto came a few days after the President’s removal of Watergate special prosecutor Archibald Cox had resulted in the onset of impeachment proceedings in the House.  Soon after, the veto was overridden by margins larger than had been the case when Congress passed the resolution – not something that often happens in such situations.  And so the War Powers Act (as it is popularly known) became the law of the land.

But, with the prominent exception of Jimmy Carter, neither Richard Nixon or almost any subsequent President ever really endorsed it.  But all of them, up to the present, followed its terms.  This was also the case in the Grenada and Lebanon operations in Ronald Reagan’s time, the Panama operation during the first Bush administration, the ill-fated Somalian operation of 1992-93, and Bill Clinton’s airstrikes in Kosovo in 1999.  (Although President Clinton extended that operation a few weeks beyond sixty days, using the argument that funding authorized by Congress for it constituted approval of the sort mandated by the resolution.)  When it came to military actions that obviously needed more time, such as the Gulf War and the Iraq War, the President obtained Congressional approval before committing our armed forces to a full-scale conflict.

But President Obama’s approach has been different.  When he had American forces commence airstrikes on Libyan military operations, he stated that his action was consistent with the terms of the War Powers Resolution; this implied that, today, he would need to seek Congressional approval to continue it past the sixty-day mark.  But he also made it plain that American action was to be done under the military auspices of the North Atlantic Treaty Organization.  For several weeks, the rather low-key position taken by the White House has been that what is taking place in Libya, although overwhelmingly dependent on American military might, and overseen by an American general, is to be considered a NATO operation, not a unilateral American one, and, as such, apparently not subject to action by Congress.  But President Nixon clearly believed, as indicated in his veto message, that the wording of the resolution gave Congress the power to prevent American participation in a NATO action if the President had committed American forces to it without Congressional approval.  The question now is whether Congress will act in a way that would support Nixon’s interpretation.

It seems quite apparent that, were the President to seek an endorsement from Capitol Hill now, there is a strong chance he could not obtain it.  Unlike the Iraq and Afghanistan conflicts, the incursion into Libya began without a majority of Americans supporting it in opinion polls.  A nationwide survey conducted last week by the University of Iowa states that almost half of those polled oppose the Libyan action, and just one-third approve of it.  Interestingly, this division of opinion is not among party lines; the poll indicates that the split for and against involves roughly half-and-half Republican and Democratic voters, either way, although most independents oppose the action.

So the White House approach, for the moment, simply seems to be to continue military action in Libya and hope that Congress either takes no action about it for the time being or ultimately extends approval.  Bruce Ackerman and Oona Hathaway, professors of law and political science (respectively) at Yale University, point out the ramifications of this in the Washington Post’s website:

Make no mistake: Obama is breaking new ground, moving decisively beyond his predecessors. George W. Bush gained congressional approval for his wars in Afghanistan and Iraq. Bill Clinton acted unilaterally when he committed American forces to NATO’s bombing campaign in Kosovo, but he persuaded Congress to approve special funding for his initiative within 60 days. And the entire operation ended on its 78th day.

In contrast, Congress has not granted special funds for Libya since the bombing began, and the campaign is likely to continue beyond the 30-day limit set for termination of all operations.

Since the House of Representatives is out of session this week, Congress can’t approve the operation before the Friday deadline. But under the expedited procedures specified by the act, speedy congressional approval is feasible next week.

Other noteworthy articles on this subject today include op-eds in the Wall Street Journal by John C. Yoo and Robert Delahunty (professors of law who both served in the George W. Bush administration’s Justice Department) and by K.T. McFarland, who served in  national-security positions under Nixon, Ford, and Reagan, at Fox News’s site.  The message in both is clear: if Obama can prevail on this point, it represents an implicit endorsement of President Nixon’s view of the role of the Chief Executive in deciding on military action.