Showdown Emerging Over Legality of U.S. Involvement in Libya

on May 24 2011 8:37 AM

With the conflict in Libya appearing increasingly like a protracted stalemate, Congress is debating whether it must vote to sanction continued U.S. operations.

The constitution explicitly grants Congress the power to make war, and the 1973 War Powers Act sought to safeguard this authority by requiring the president to get Congressional approval 60 days after committing troops to combat.

On Friday, Obama wrote a letter asking Congressional leadership to pass a resolution drafted by a bipartisan group of senators. A separate group of Republican senators led by Rand Paul (R-Ky.) sent Obama a letter urging him to abide by the War Powers Act, noting that your administration indicated use of the United States Armed Forces will continue indefinitely. The House Foreign Affairs Committee will hold a hearing on Wednesday to discuss whether Congress must legally sanction further action.

The president's initial decision to deploy U.S. forces to Libya drew sharp rebukes from members of both parties who called the move unconstitutional, arguing that the president can only authorize military force to respond to direct attacks on Americans or shield them from harm. In a 2007 interview with journalist Charlie Savage, Obama seemed to endorse his critics' position when asked whether a president could hypothetically bomb Iran without Congressional approval.

The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation, Obama said.

If Obama is indeed overstepping his authority as commander in chief he would not be the first president to do so. Senator John McCain (R-AZ) said at a recent press conference that no president has ever recognized the constitutionality of the War Powers Act and neither do I. Still, Obama's embrace of executive power has caught some observers off guard.

I'm actually a little bit surprised because my guess would be if the president has asked for a supported joint resolution it would have been enthusiastically forthcoming from a substantial majority of both houses, William and Mary Law School professor William Van Alstyne said.

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