Speaker of the House John Boehner on June 14 sent to President Obama a letter that was made public asking Obama to explain how the Administration is in compliance with the War Powers Resolution (WPR) or if the Administration views the WPR as unconstitutional. Boehner asked for the explanation to be made both to Congress and the American people. This was the political attack.
At the same time, ten members of the House of Representatives, led by Democrat Dennis Kucinich, went to court in the District of Columbia. This bi-partisan group of House members asks the District Court to declare that the Libyan military action is a war, that NATO actions do not give Obama the power to ignore the US Constitution and that Obama is unconstitutionally using money not appropriated for military action in Libya.
The War Powers Resolution
The US Constitution divides the federal government’s war powers between the President and Congress. The President is the Commander in Chief of the armed forces as defined in Article II. Congress has the power to declare war, and to raise and fund the armed forces as defined in Article I. In the early days of the republic this was not a huge issue as the government did not maintain a standing army.
Over time however, as the US assumed a greater role in world affairs and maintained a permanent armed forces, questions arose as to the President's authority to send US military personnel into hostile situations abroad without a Congressional declaration of war or other approval. Neither the Korean War, nor the Viet Nam War were conducted with a Congressional declaration of war.
Following the Viet Nam War, Congress passed the War Powers Resolution to address these concerns and provide procedures for the President and Congress to follow when the deployment of U.S. forces abroad could result in involvement armed conflict.
The procedures consist of consultation with Congress when forces are introduced to existing or imminent hostilities and an ongoing duty of the President to consult with Congress as long as the situation exists. The President must report the introduction of forces to Congress and they may only be deployed up to a possible 90 days absent Congressional approval.
Though Presidents have typically complied with the WPR, most administrations have taken the position that the War Powers Resolution is unconstitutional and compliance has been a courtesy.
President Obama’s Actions In Libya
On March 18, 2011, President Obama, citing humanitarian concerns for the citizens of Libya, who were under attack by their own armed forces, began a program of air support for the forces opposing Colonel Moammar Gadhafi. Obama soon presented Gadhafi with an ultimatum calling for his removal from power. US air power was introduced, and under the auspices of NATO and the United Nations, continues to support the effort to oust the dictator.
The Boehner Letter to Obama
Speaker Boehner sent a letter to the President regarding the US ongoing involvement in Libya. Boehner makes it clear that Obama has neither sought nor received the congressional action required under the War Powers Resolution to continue America’s Libyan involvement. Boehner indicates that US forces must be withdrawn by June 19 or else the President will be in violation of the Resolution.
Boehner asks Obama to explain in the alternative. Why the administration does not believe the War Powers Resolution applies to the Libyan action, or if the administration feels free to ignore the resolution as an unconstitutional infringement on the President’s powers as Commander in Chief?
While Boehner’s letter is couched in what appear to be legal questions, it was released publicly, calling upon Obama for a public response. This is an obvious political challenge to the Libyan action. There is anticipation that the response will be that the War Powers Resolution does not apply to the US military activity in Libya.
The Congressional Lawsuit Against the Administration
Nearly contemporaneously with the Boehner letter, Kucinich v. Obama was filed in the US District Court for the District of Columbia. The several claims of the lawsuit indicate that the Libyan action violates the War Powers Resolution and the continued action violates the Constitution in several respects. The suit contends that Obama has conducted the operation with the authority of the UN and NATO and that he has no such authority to do so absent authority from the US Constitution. The final claim is that the President has violated the Constitution by spending nearly $1 billion on Libya that was not appropriated for that purpose.
There have been claims in the past that presidents have violated the War Powers Resolution. Most notably, Campbell v. Clinton, a case that was decided by an appellate court. The Supreme Court declined to review the decision. The essence of that decision was that President Clinton’s actions in Yugoslavia presented a question political in nature and the proper remedy for the congressmen was to work within the Congress. The court could not and would not referee such a dispute.
Most of the claims in Kucinich v. Obama appear similar to Campbell and likely to have a similar outcome with the congressmen sent back to Congress to pass laws to correct their grievances.
The single claim of the congressmen that Obama has illegally spent money may present the court with something it can resolve. Article I, Section 9, Clause 7 of the Constitution states that “[n]o money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” The congressmen have asserted that Obama has in fact violated this provision in that none of the nearly $1 billion used in Libya has been appropriated for that purpose by Congress.
If the court decides to entertain this issue, there are remedies available, including an injunction against the president to stop spending US money on the Libyan operation. That small claim in the middle of the 36 page lawsuit could provoke a constitutional crisis of unknown magnitude.
David J. Shestokas - Mr. Shestokas is a former prosecutor & writes on the Constitution & legal issues for the Save America Foundation & Suite 101.
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