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House Speaker John Boehner's Letter to President Barack Obama on Libya, and the Memo From the Office of Legal Counsel

by Professor Will Huhn on June 15, 2011

in Constitutional Law,Separation of Powers,Wilson Huhn

Speaker Boehner has sent a letter to President Obama regarding the legality of our military action in Libya under the Constitution and the War Powers Act.  Speaker Boehner does not appear to oppose the military involvement so much as he desires to weaken or eliminate the War Powers Act.

Here is the letter that the Speaker sent the President:

June 14, 2011

Dear Mr. President:

Five days from now, our country will reach the 90-day mark from the notification to Congress regarding the commencement of the military operation in Libya, which began on March 18, 2011. On June 3, 2011, the House passed a resolution which, among other provisions, made clear that the Administration has not asked for, nor received, Congressional authorization of the mission in Libya. Therefore, it would appear that in five days, the Administration will be in violation of the War Powers Resolution unless it asks for and receives authorization from Congress or withdraws all U.S. troops and resources from the mission.

Since the mission began, the Administration has provided tactical operational briefings to the House of Representatives, but the White House has systematically avoided requesting a formal authorization for its action. It has simultaneously sought, however, to portray that its actions are consistent with the War Powers Resolution. The combination of these actions has left many Members of Congress, as well as the American people, frustrated by the lack of clarity over the Administrationâs strategic policies, by a refusal to acknowledge and respect the role of the Congress, and by a refusal to comply with the basic tenets of the War Powers Resolution.

You took an oath before the American people on January 20, 2009 in which you swore to âfaithfully execute the Office of Presidentâ and to âpreserve, protect and defend the Constitution of the United States.â The Constitution requires the President to âtake Care that the Laws be faithfully executed,â and one of those laws is the War Powers Resolution, which requires an approving action by Congress or withdrawal within 90 days from the notification of a military operation. Given the mission you have ordered to the U.S. Armed Forces with respect to Libya and the text of the War Powers Resolution, the House is left to conclude that you have made one of two determinations: either you have concluded the War Powers Resolution does not apply to the mission in Libya, or you have determined the War Powers Resolution is contrary to the Constitution. The House, and the American people whom we represent, deserve to know the determination you have made.

Therefore, on behalf of the institution and the American people, I must ask you the following questions: Have you or your Administration conducted the legal analysis to justify your position as to whether your Administration views itself to be in compliance with the War Powers Resolution so that it may continue current operations, absent formal Congressional support or authorization, once the 90-day mark is reached? Assuming you conducted that analysis, was it with the consensus view of all stakeholders of the relevant Departments in the Executive branch? In addition, has there been an introduction of a new set of facts or circumstances which would have changed the legal analysis the Office of Legal Counsel released on April 1, 2011? Given the gravity of the constitutional and statutory questions involved, I request your answer by Friday, June 17, 2011.

From the beginning, the House of Representatives has sought to balance two equal imperatives regarding Libya which have been in direct contradiction: the House of Representatives takes seriously Americaâs leadership role in the world; our countryâs interests in the region; and the commitments to and from its steadfast allies. At the same time, strong concern and opposition exists to the use of military force when the military mission, by design, cannot secure a U.S. strategic policy objective. The ongoing, deeply divisive debate originated with a lack of genuine consultation prior to commencement of operations and has been further exacerbated by the lack of visibility and leadership from you and your Administration.

I respect your authority as Commander-in-Chief, though I remain deeply concerned the Congress has not been provided answers from the Executive branch to fundamental questions regarding the Libya mission necessary for us to fulfill our equally important Constitutional responsibilities. I believe in the moral leadership our country can and should exhibit, especially during such a transformational time in the Middle East. I sincerely hope the Administration will faithfully comply with the War Powers Resolution and the requests made by the House of Representatives, and that you will use your unique authority as our President to engage the American people regarding our mission in Libya.

Respectfully,

John A. Boehner

Jonathan Allen of Politico, in an article entitled John Boehner's War Powers Act Flip-Flop points out that Speaker Boehner has consistently opposed the War Powers Act and has sought to repeal it.  Allen quoted Boehner's 1999 remarks:

âThe president of the United States is, and should remain, the chief architect of America?s foreign policy and the commander-in-chief of our armed forces,â Boehner said in a 1999 press release when Congress was debating U.S. involvement in the Balkans. âInvoking the constitutionally-suspect War Powers Act may halt our nation's snowballing involvement in the Kosovo quagmire. But it's also likely to tie the hands of future presidents ⦠A strong presidency is a key pillar of the American system of government â the same system of government our military men and women are prepared to give their lives to defend. Just as good intentions alone are not enough to justify sending American troops into harm's way, good intentions alone are not enough to justify tampering with the underpinnings of American democracy.â

On April 1 the Carolyn Krass of the Office of Legal Counsel prepared a memo for the Attorney General entitled "Authority to Use Military Force in Libya" advising that the War Powers Act did not apply to the conflict in Libya because it was a limited conflict and not a "war" – specifically, that the Libya mission was more limited than operations in Bosnia and Haiti where ground troops were introduced into foreign countries.  Krass concluded:

The President had the constitutional authority to direct the use of military force in Libya because he could reasonably determine that such use of force was in the national interest.

Prior congressional approval was not constitutionally required to use military force in the limited operations under consideration.

With respect to whether the conflict in Libya constitutes a "war," Krass stated:

As in the case of the no-fly zone patrols and periodic airstrikes in Bosnia before the deployment of ground troops in 1995 and the NATO bombing campaign in connection with the Kosovo conflict in 1999âtwo military campaigns initiated without a prior declaration of war or other specific congressional authorizationâPresident Obama determined that the use of force in Libya by the United States would be limited to airstrikes and associated support missions; the President made clear that â[t]he United States is not going to deploy ground troops in Libya.â Obama March 18, 2011 Remarks. The planned operations thus avoided the difficulties of withdrawal and risks of escalation that may attend commitment of ground forcesâtwo factors that this Office has identified as âarguablyâ indicating âa greater need for approval [from Congress] at the outset,â to avoid creating a situation in which âCongress may be confronted with circumstances in which the exercise of its power to declare war is effectively foreclosed.â Proposed Bosnia Deployment, 19 Op. O.L.C. at 333. Furthermore, also as in prior operations conducted without a declaration of war or other specific authorizing legislation, the anticipated operations here served a âlimited missionâ and did not âaim at the conquest or occupation of territory.â Id. at 332. President Obama directed United States forces to âconduct[] a limited and well-defined mission in support of international efforts to protect civilians and prevent a humanitarian disasterâ; American airstrikes accordingly were to be âlimited in their nature, duration, and scope.â Obama March 21, 2011 Report to Congress. As the President explained, âwe are not going to use force to go beyond [this] well-defined goal.â Obama March 18, 2011 Remarks. And although it might not be true here that âthe risk of sustained military conflict was negligible,â the anticipated operations also did not involve a âpreparatory bombardmentâ in anticipation of a ground invasionâa form of military operation we distinguished from the deployment (without preparatory bombing) of 20,000 U.S. troops to Haiti in concluding that the latter operation did not require advance congressional approval. Haiti Deployment, 18 Op. O.L.C. at 176, 179. Considering the historical practice of even intensive military actionâsuch as the 17-day-long 1995 campaign of NATO airstrikes in Bosnia and some two months of bombing in Yugoslavia in 1999âwithout specific prior congressional approval, as well as the limited means, objectives, and intended duration of the anticipated operations in Libya, we do not think the âanticipated nature, scope, and durationâ of the use of force by the United States in Libya rose to the level of a âwarâ in the constitutional sense, requiring the President to seek a declaration of war or other prior authorization from Congress.

Boehner has set a deadline of Friday for the President to respond to his letter.   It is not clear what action the Speaker will recommend if the President stands by the administration position that the War Powers Act does not apply to this situation.  Possible actions include:

1.  Sponsoring legislation cutting off funding for the action in Libya;

2.  Sponsoring legislation ordering an end to military action in Libya;

3.  Initiating judicial proceedings to enforce the War Powers Act;

4.  Initiating impeachment proceedings against the President;

5.  Sponsoring a resolution authorizing military force in Libya.

I think it unlikely that Speaker Boehner will take any of these actions.  I believe that the Speaker and a majority of the House of Representatives support the military action in Libya; if anything, a majority of the members would support even more vigorous steps against Muammer Gaddafi.  However, it does not appear that the Speaker is willing to initiate a resolution that would formally authorize the steps that the President has taken.

However, a Democratic congressman may take steps to enforce the War Powers Act.  In Kucinich To Sue Obama For Violating War Powers Act In Libya Jennifer Bendery at Huffington Post reports that Dennis Kucinich and eight other members of Congress (including Republican presidential candidate Ron Paul) plan to file suit to force the President to comply with the War Powers Act.  

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790

{ 4 comments }

Dave June 15, 2011 at 9:56 pm

The War Powers Act is fairly useless.

It is either redundant or unconstitutional.

larry d. June 15, 2011 at 10:13 pm

I don't see how Boehner's letter attempts to weaken or eliminate the War Powers Act. He appears to be trying to enforce it.

Of course the Obama Administration's argument is the kind of creepy authoritarian rationale we've come to expect. Obama can bomb anyone anywhere as long as he deems it in the U.S. interest.

Looking forward to reading some legalistic apologetics for the Boeing and Gunrunning for Cartels scandals.

Professor Will Huhn June 17, 2011 at 7:33 am

Dave,
The "concurrent resolution" portion of the War Powers Act is clearly unconstitutional under Chadha. The remainder of the Act is probably unenforceable in the courts because it presents a political question, and I predict that Kucinich's suit will be dismissed for lack of justiciability. (For that reason I wish he hadn't brought the suit.) But I don't think that the Act is redundant; rather it clarifies how much authority the President has under the Constitution to order military action without the consent of Congress. This is important in the context of laying the foundation for impeachment of a President. That will occur if and when a President starts a major war that Congress disapproves of.
larry,
My position – that I have expressed before – is that under the Constitution the President may not commit an "act of war" against another country except in defense of the United States or its citizens. Military operations like the rescue mission to free the hostages in Iran and the killing of Osama bin Laden in Pakistan are permissible because they were in response to hostile actions that the governments of those countries were unwilling or unable to respond to. In contrast, the military operation in Libya is not in defense of the United States or its citizens, and it certainly constitutes an act of war against that country. Nor, despite the involvement of NATO and the United Nations, was this action taken in accordance with any treaty obligations that Congress or the Senate had specifically authorized. Accordingly, in my opinion President Obama has acted in violation of the War Powers Act and the Constitution when he commenced military operations in Libya. Do you consider that to be "legalistic apologetics"?
On the other hand, from a political, military, and foreign policy perspective I think that the action in Libya was appropriate and necessary, and I think that Speaker Boehner and a majority of members of Congress agree with that position. At some point the Speaker has to decide whether he supports or opposes the military action. If he supports it, then he should support the Senate resolution drafted by McCain and others or introduce another one that authorizes or ratifies the action. If he opposes the military operation in Libya then he should support the resolution introduced by Representatives Kucinich and Paul or draft another one that expresses his opposition. He has been consulted, and we know what the risks, costs, and objectives are. It's time for the Speaker to get off the fence and decide whether he wants this military action to continue until Gaddafi is removed, or whether he wants to put a halt to it. Pretty simple.

larry d. June 17, 2011 at 7:53 am

How about impeach and imprison Obama, then ratify the unlawful war? Best of both worlds.

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