What does the Libya lawsuit mean?
President Barack Obama plans to defend U.S. military involvement in Libya to Congress, the White House says.
June 15th, 2011
03:08 PM ET

What does the Libya lawsuit mean?

Editor's Note: Matthew Waxman is Associate Professor at Columbia Law School and Adjunct Senior Fellow at the Council on Foreign Relations. The following is an edited transcript of an interview with Professor Waxman.

Amar C. Bakshi: A bipartisan group of House members said today they are filing a lawsuit that challenges U.S. participation in the Libya military mission. What does this  lawsuit mean?

Matthew Waxman: The War Powers Resolution was enacted in the wake of the Vietnam War to prevent the President from engaging in wars and major military adventures without Congress’s explicit consent.  It does so by requiring the President to withdraw U.S. military forces from armed hostilities within 60 days unless Congress expressly approves otherwise.

The following question has since arisen many times: What remedy exists if the President ignores the requirements set out in that resolution? What happens, for example, if 60 days passes and Congress hasn’t authorized the use of force but the President continues to direct military activities abroad?

There are several types of remedies:

The first is litigation: members of Congress or other interested parties could sue the President, arguing that he is acting illegally.  They could seek a court judgment ordering the cessation of military operations. That is what’s apparently about to happen now.

The second is that Congress could use its legislative power:  it could pass a law prohibiting the military operations or it could use the “power of the purse” to strip funding for military operations. Either way, Congress could legislatively force the President to stop the operations, but this is very hard to pull off politically.

The third remedy is political, and this is the likely to be the most consequential one in this case: Members of Congress could use the argument that the President is violating the law as a political stick to try to pressure the President in certain ways, extract concessions from him, force him to spend political capital, and gain a greater say in managing or curbing the operation.

Why hasn’t President Obama requested formal Congressional authorization for the Libya intervention?

It’s not really clear exactly why President Obama hasn’t requested formal Congresional authorization, especially because - at least early on – intervention was being loudly championed by some members of congress.  Over time, as the operation has dragged on, though, Congressional support has eroded.

Perhaps one reason President Obama did not seek Congressional authorization was that the White House felt it didn’t need it for this type of operation, and it didn’t want to concede that point.

Another possibility is that the President – with other big legislative agenda items currently at stake – did not want to expose Libya operations to a major Congressional debate.

Will this suit go anywhere?

The idea of suing the President for violation of the War Powers Resolution is not a new one. This was tried, for example, by some members of Congress during the Kosovo operations in 1999 when, similar to this situation, President Clinton conducted major military operations in conjunction with NATO past the sixty day deadline in the War Powers Resolution.  Some members of Congress sued, but the Court ended up tossing the lawsuit out.

I’d expect a similar outcome in this particular case because courts tend to be very reluctant to wade into War Powers disputes between the political branches of Congress.

How can Obama argue that he does not need Congressional authorization?

There are a couple of possible arguments. The Obama Administration is saying we should expect its legal explanation very soon, so we’ll then have a clearer picture of its arguments.

Some Presidents – including President Richard Nixon when he unsuccessfully vetoed the War Powers Resolution – have argued that it’s unconstitutional.

It is more likely that President Obama will argue that these particular operations in Libya don’t trigger the War Powers Resolution’s sixty day withdrawal deadline requirement because the specific type of operations conducted by American forces don’t rise to the level of combat hostilities contemplated by the statute.  The Administration may argue specifically that the U.S. forces are almost entirely in a support role; that we don’t have boots on the ground; and that our forces are not directly engaging enemy forces with hostile fire.

For those reasons the Administration may argue the sixty-day clock hasn’t really been ticking since we handed over the vast bulk of air operations to other NATO coalition partners.

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Topics: Law • Libya • Q&A

soundoff (80 Responses)
  1. craig sanes

    This is no reflection on what is, or is not, required in Lybia as far as outside intervention.. The War Powers Resolution was at the outset, regardless of intended design, employed as a bi-partisan tool where the congressional sanctioning would be pitted against war time presidential popularity. Historically when presidents declare war their popularity, especially when in waining, tends to be restored.

    But a lot has happened since Post Vietnam congressional renovations, Kosovo, and Somalia. Since then the increasing privitization of military contracts, as well as the cropping up of wholey private institutions working in conjuncion with international military forces, kind of like the 'Pinkertons' , have unavoidably changed the nature of war time presidential policies.

    Prior the employment or deployment of the resolution was almost strickly a political venture. but now with the act of war,.. police action, intervention, what ever you want to call it, the resolution can open whole new doors, not only for extended military budgets, but for many different tiers in the private sector, as well: security, insurance, legal consulting, reinfrastructuring ( a whiole booming new industry). Lets face it..Lobbyists courting war time presidental administrations have become vast and diverse; so much so, in terms of presidential obligation ( jobs, foreign investment, etc. ) any current administration could scarcely just say.. NO!

    The asnwer is and will continue to be YES!, And the 60 justification and warrant for extended internment and occupation could very likely in the future come to be recognized as a 'permit approval waiting period' for entities both public and private, alike, to keep there hands on other peoples stuff.

    For these reasons, even more than for the innitial purpose of the bill, it is not only important to bring this out into the open, but push even further. This is not Sarah Palins 'plausibly' inappropriate emails we are going after. This is actually important. this resolution will, really already has, become a global vehicle for the establishment of new economic regimes. That is not the resolutions purpose, and I would not want it to be.

    June 17, 2011 at 2:10 pm | Reply
  2. Observer1290

    It means that Obama's time has come:

    June 17, 2011 at 2:23 pm | Reply
  3. oldboldgold

    VOTE THIRD PARTY AND THROW OUT THE REP/DEMS.

    June 17, 2011 at 6:14 pm | Reply
  4. oldboldgold

    VOTE THIRD PARTY AND THROW OUT THE REP/DEMS. NEITHER PARTY REPRESENTS THE PEOPLE. DON'T BUY IN TO ELECTING MORE REPUBLICANS. Yes, Barack Obama has violated the Constitution. No, we do not want the Republicans in. I will vote Green Party in 2012.

    June 17, 2011 at 6:20 pm | Reply
  5. Wasabiwahabi

    Larouche is a douche.

    June 17, 2011 at 8:04 pm | Reply
  6. believethis

    half black or half white he is still an idiot

    June 19, 2011 at 8:40 am | Reply
  7. believethis

    half black or half white he is still and idiot

    June 19, 2011 at 8:40 am | Reply
  8. justice

    WE WANT JUSTICE NATO UN SHOW THE PEOPLE ABOUT JUSTICE PLEASE HOW MANY PEOPLE DO YOU PROTECT THE LIBYAN PEOPLE AND MANY KILLED AND HOW MANY MADE INTO RUFUGEES FRENCH GOES FIRST...BAN NATO

    THANKS

    June 19, 2011 at 8:49 am | Reply
    • Wasabiwahabi

      SHADDUP!

      June 19, 2011 at 9:31 pm | Reply
  9. Claude

    We are simply not killing each other fast enough. More armies, more weapons, more interventions, are urgently required to maintain our present systems consisting of we are different and better than you and so we have to kill all of you because you're not like us. Let's get on with it. The more deaths the better.

    June 19, 2011 at 10:11 pm | Reply
    • Wasabiwahabi

      Quite your whining, cry-baby!

      June 20, 2011 at 6:42 am | Reply
  10. Kelby

    It means RON PAUL is finally winning!! And YOU, CNN, will PAY DEARLY for lying to all of us all these years!! You will pay in BLOOD!

    June 21, 2011 at 11:34 pm | Reply
  11. Randolph Rohrdanz

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    June 8, 2013 at 12:32 am | Reply
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