June 15, 2011 09:25 PM UTC

So You're Sure It's Legal, Are You?

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• by: Colorado Pols

THURSDAY UPDATE: Los Angeles Times:

“Given the important U.S. interests served by U.S. military operations in Libya and the limited nature, scope and duration of the anticipated actions, the president had constitutional authority, as commander in chief and chief executive and pursuant to his foreign affairs powers, to direct such limited military operations abroad,” the memo states.

“The president is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of ‘hostilities’ contemplated by the resolution’s 60 day termination provision,” it continues…

In its initial response to the memo, Boehner’s office said President Obama had “fallen short” of his obligation to properly explain the U.S. involvement.

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Remember back in March, when we noted some dissent from both Republicans and Democrats over the decision to participate in NATO air strikes against Libya by President Barack Obama? We said at the time that “a plain reading of the 1973 War Powers Resolution is tough to square with ordering airstrikes against Libya without congressional authorization, or a direct threat to American interests.” When we noted that, we drew some relatively heavy flak from readers, including some we would describe as liberal Democrats, who insisted that the President had complete authority to conduct the war–based on American adherence to international treaty, the president’s role of commander-in-chief, etc. The certitude with which various readers asserted to us we were wrong about the War Powers Resolution was a little surprising, especially since the legislative and executive branches of the federal government have been arguing about this law pretty much from the moment it became law.

Well today, Politico reports:

A bipartisan group of House members announced on Wednesday that it is filing a lawsuit charging that President Obama made an illegal end-run around Congress when he approved U.S military action against Libya.

“With regard to the war in Libya, we believe that the law was violated. We have asked the courts to move to protect the American people from the results of these illegal policies,” said Rep. Dennis Kucinich (D-Ohio), who led the 10-member anti-war coalition with Rep. Walter Jones (R-N.C.)…

According to Kucinich, the suit will challenge the Obama administration’s “circumvention of Congress and its use of international organizations such as the United Nations and the North Atlantic Treaty Organization to authorize the use of military force abroad.”

It also will ask a judge to prohibit the White House from conducting a war without congressional approval.

Republican House Speaker John Boehner is towing an unusual line in this debate, having had to defend President Obama from his own angry caucus at least once. Some Republicans can be accused of hypocrisy for suddenly becoming champions of the War Powers Resolution; others, it should be noted, have felt this away about it all along. It’s worth noting that for all the criticism heaped on him by liberals, George W. Bush never pushed the line in his congressionally-authorized military actions as far as Obama has in Libya. Boehner doesn’t claim that the President has already violated the Resolution, but says he will by the weekend if American involvement doesn’t end or congressional approval is not obtained.

The bottom line according to legal opinionmakers we’ve talked to is that the constitutionality of the War Powers Resolution may never have been presented with a test like this one. Presidents have called the Resolution unconstitutional, even as some (like Bush) complied with its terms by seeking congressional approval for military action. Passed in the aftermath of the Vietnam War, the Resolution seeks to balance the role of Congress is declaring war with the nature of modern conflict, where “declarations” of war have become quaint. Because the President is apparently relying upon United Nations authority to prosecute the war instead of (as of this writing, anyway) Congress, it’s a test of the constitutional primacy of international treaty as well.

Once thing this is not, though, is an open-and-shut case.