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Constitutionality of Obama’s Actions in Libya

Article first published as Is Obama’s War in Libya Constitutional? on Blogcritics.

President Barack Obama’s intervention in Libya with American military forces creates an interesting dilemma, though mainly for ideologues, partisans and talking heads. The drama ensues from the duplicitous back and forth between Democrats and Republicans on this issue of executive war powers.

Should Barack Obama have sought and obtained the approval of Congress before exercising any use of force in Libya? While there appears to be ample consensus that congressional approval was not required (for now), there are plenty raising their voice in opposition.

Congressmen Rand Paul and Dennis Kucinich are among the vocally discontent. It would appear that the anti-war left and the strict constructionists are aligned on the issue. Everyone else inbetween are saying little beyond simple rhetoric. There are some rumblings and many are taking the opportunity to exploit the perceived hypocrisy of the president, based on previous comments he has made directed at the Bush Administration. 

Thomas McAffee, a U.S. Constitution and executive war powers expert (University of Nevada, Las Vegas: Boyd School of Law) acknowledged that Obama’s own words in the past are hard to reconcile with his current actions, though there are reasons his statements made more sense at the time because of the context.

Professor McAffee said the United States has certainly moved away from the original understanding of the war declaration clause and executive war making powers.

“An interesting footnote in all of this: We’ve been doing this stuff since Korea. Presidents have since engaged in wars without official declarations or even congressional consent.”

He explained that presidents have normally gone back and sought the approval of Congress after the fact. Nonetheless, these presidents never claimed a need for such approval. They claim the actions they have engaged in are not war, but rather police actions.

The claims that the Korea and Vietnam wars were anything but wars are highly suspect. Still, Professor McAffee explained that there are circumstances in which the use of force is not what most would consider war:

“America’s involvement in Kosovo, Somalia and the no-fly zone in Iraq aren’t what you think about as war. Yes, it is war in a sense, but really what you are talking about is humanitarian efforts.”He warns, however, that this does not give presidents carte blanche war powers.

“Decisions made about committing troops into a battle we are hoping to win or lose must be made by congress. But entering into intervention mode where we are hoping to prevent massacres (a whole bunch of people getting killed) is perhaps a matter of executive powers of foreign policy.”

Professor McAffee is not the only person who is willing to draw such distinctions. The National Review conducted a symposium about the constitutionality of Obama’s actions in Libya. Certainly some shots are taken at the President, but the general consensus among the conservative commentators is that the President has authority to use a limited amount of force without the approval of congress.

The War Powers Resolution, passed in the early 70s, requires the president to get approval for the use of force within 60 days of committing troops.  The law has never been enforced, and previous challenges using the law have been thrown out by the Supreme Court.  It would appear that the legal reality is crystal clear in this circumstance, regardless of what the pundits might say.

At the end of the day, it is hard to reconcile any criticism of President Obama’s actions with the overwhelming conservative consensus and agreement with Jon Yoo’s treatises about presidential war powers.

If the criticism is simply that Obama is acting duplicitous, that is another matter entirely. Even there, one must really analyze what he has said in the past in context. If we draw a distinction between humanitarian interventions and actual wars, the difference between what Obama is doing now in Libya and what he said about war powers as a Senator both make sense.

About Justin McAffee:
Justin is the publisher The Nevada View, which has earned the recognition in the Washington Post’s “Best State-Based Political Blogs,” as well as being awarded the “Most Valuable Blogger Award” by the local CBS affiliate in 2011. Follow him on Twitter @McAffee

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