Today is the 60th day since President Barack Obama notified Congress “U.S. military forces commenced operations to assist an international effort authorized by the United Nations (U.N.) Security Council and undertaken with the support of European allies and Arab partners, to prevent a humanitarian catastrophe and address the threat posed to international peace and security by the crisis in Libya.” ^[1]

The War Powers Resolution of 1973 ^[2] said that within 60 days of notifying the Congress of the use of force “the President shall terminate the use of United States Armed Forces” unless Congress has declared war or authorized the use of force, extended the 60 day period, or is physically unable to meet because the nation has been attacked.

President Obama has a few hours to go, but I doubt that he will stop American air attacks in Libya. Indeed, the attacks have spread to Libyan ships ^[3] to counter Qadaffi’s forces.

Like earlier presidents, Obama said his notification of hostilities in Libya was “consistent with the War Powers Resolution.” Now the administration has apparently decided to ignore the law completely. Obama has not sought congressional approval for the bombing. He follows the example of Bill Clinton, who ordered air strikes in Bosnia in 1995 without seeking congressional approval.

Even if you put aside the War Powers Resolution, the U.S. Constitution clearly requires ^[4] congressional approval of our war in Libya. The legal scholar Michael Ramsey notes ^[4]:

Every major figure from the founding era who commented on the matter said that the Constitution gave Congress the exclusive power to commit the nation to hostilities.  Notably, this included not only people with reservations about presidential power, such as James Madison and Thomas Jefferson, but also strong advocates of the President’s prerogatives, such as George Washington and Alexander Hamilton.  As President, Washington on several occasions said that he could not undertake offensive military actions without Congress’ approval.  Hamilton is especially significant, because his views on the need for a strong executive went far beyond those of his contemporaries.  Yet Hamilton made it very clear that he read the Constitution not to allow the President to begin a war — as he put it at one point, “it belongs to Congress only, to go to war.”

(See also Ramsey’s article “Textualism and War Powers,” 69 University of Chicago Law Review 1543 (2002)

Candidate Barack Obama agreed in 2007 that “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.” ^[5] Colonel Qaddafi’s forces, of course, posed an imminent threat to Libyan nationals engaged in the recent civil war in that nation. How did the Colonel or his army threaten Americans?

This time around, Congress has offered less resistance than in earlier presidential uses of force in Haiti, Bosnia, and Kosovo. They have not roused themselves even to pass a non-binding “sense of the Congress” resolution that the President should seek approval. In the 1990s, there were actual debates in Congress about the wisdom and constitutionality of various wars. Now, silence. It is easy to violate the constitutional domain of a body that is unwilling to collectively defend its powers and unwilling to take up the responsibility of their exercise.

The War Powers Resolution never worked in practice as intended. It is now moribund and should be replaced by a new effort in the courts or Congress to apply the original public meaning of the Constitution and thereby right the balance between starting and making war.