Power Wars Symposium: Libya and the War Powers Resolution

Editor’s Note: This is the latest entry in a symposium Just Security is hosting in conjunction with the recent release of Power Wars: Inside Obama’s Post-9/11 Presidency by Charlie Savage. The series includes posts by Oona Hathaway, Marty Lederman (here and here), Laura Donohue, Jennifer Daskal, Jennifer Daskal & Steve Vladeck, and Richard Pildes, with more to come.

My close friend and colleague Rick Pildes’ provocative and important post offers a laudable effort to think about what the role of law is and should be in the modern executive, especially with regard to what Rick calls the “complicated decision-making calculus in areas of vital national interest.” I applaud the effort, which is understandably provoked by the source material contained in Charlie Savage’s Power Wars. Certainly, there is a glaring disconnect between public perceptions of the role law is supposed to play, the role law claims for itself, and the realities of executive branch practice, and any effort to address the problem should be welcomed. Nevertheless, I think there are at least three major problems with Rick’s use of the 2011 Libya operation to illustrate his argument.

First, Rick describes the difficult situation that President Obama found himself in when he realized that congressional extension of the 60-day clock under the War Powers Resolution (WPR) would not be forthcoming in the Libya conflict. Terrible consequences would inevitably have followed had the President then obeyed the law’s command and ratcheted back the US involvement in the operation — leaving NATO allies in the lurch, and so on. The suggestion is that responsibility for this Day 59 problem somehow belonged to Congress, the WPR, or the law more generally.

But the way Rick thus frames the problem distorts the real issue. The Obama administration did not simply and unforeseeably find itself on Day 59 of the Libya operation in the dilemma he describes. Fifty-nine days earlier, before it entered the conflict and made commitments to the NATO allies and Arab regimes, the administration was fully aware of the legal situation it would soon face. In contrast to much of the law the executive branch interprets, applies, concocts, and then classifies, the War Powers Resolution is not secret law.

To avoid the absurd consequences that Rick blames on the WPR, the administration need only have done what the WPR effectively directs it to do, which is to have avoided introducing US forces into hostilities unless either: 1) it was confident the operations would be concluded within 60 days (on the already dubious assumption that the President had legal authority to order the mission on Day 1), or 2) it had great confidence that an affirmative legislative vote would be forthcoming before 60 days expired. By venturing forth without assurance that either condition would be satisfied, President Obama — not Congress — created the prospect, if not the likelihood, of the Day 59 crisis, and Rick only makes it appear the other way around by refusing to acknowledge that the mess resulted from calculated executive unilateralism, not congressional obstinance. (Which is hardly to deny the obstinance, or worse, of Congress.) Or, to put it differently, no “sensible” President, who really believed that he had to comply with the law, would have entered into the mission the way President Obama did. The problem is not that complying with the law on Day 59 would have generated absurd consequences, but that the executive deliberately created a situation in which it would have no choice but to either ignore the law, significantly alter operations on Day 60, or come up with an implausible construction of the law that would magically make the dilemma disappear.

Second, Rick emphasizes the awkwardness of the WPR. But does he mean to suggest that its awkwardness is a sufficient reason for the President to put it to the side? Even if awkwardness might in some contexts be a legitimate consideration, consider how much the awkwardness of the WPR results from a combination of the way the Constitution structures the veto power and post-Chadha limits on Congress’ procedural options for taming executive unilateralism. It might be one thing if Congress could by concurrent resolution force the President to stop hostilities undertaken unilaterally. But the Constitution — or rather the Supreme Court — has ruled out that option. The WPR’s 60-day automatic cut-off is thus a functional substitute for the legislative veto, and it may be the only constitutional method that, if followed, could enable Congress to reassert its power to participate in critical decisions about war and peace. The alternative is to give up and recognize the President’s effective power to initiate hostilities unilaterally, subject only to being checked by supermajorities in both Houses of Congress. In any event, in view of these complications, the so-called awkwardness of the WPR is not a good reason for the President to ignore it.

Third, Rick’s description of the Libya case as an example of law being taken into account, but not being a trump, misses the mark. What the Libya case illustrates instead is the willingness, and ability, of Presidents effectively to amend (or repeal) laws that get in their way. It is not quite right to say that the Obama administration treated the law as a factor to be considered along with other pressing policy concerns. Rather, it reinterpreted the WPR as, for all intents and purposes, permissive, when it was written to be restrictive. Rick’s story would only work if the President had publicly acknowledged, and avowed, the illegality of his actions under the WPR, claiming a higher normative, non-legal, justification. But he didn’t, and we can be sure that the Office of Legal Counsel, the White House Counsel, and the State Department’s Legal Adviser will dutifully cite this incident in future cases as an important and valid precedent about the meaning of “hostilities” in the WPR — rather than as a case when important national security policy considerations trumped the law. The Libya case is thus an example of executive nullification of law, or, perhaps more accurately, it is another step in a long process of de facto nullification — rather than forthright disregard — that Presidents have engaged in since Congress adopted the WPR.

It is unlikely for now, or for the foreseeable future, that Presidents will openly avow the necessity for treating law as only one factor among others to be considered when undertaking important policy initiatives. If they did, it might be possible to have an open, democratic debate about the difficult issues Rick raises. As it is, the overriding dynamic will continue to be the watering down and nullification of laws Presidents do not find convenient, at least in areas where the executive has enough political leverage — or, more often, can use secrecy — to succeed. What we will not see is a genuine effort to work out a new, more realistic, and perhaps normatively appealing, understanding of the role law should play in the administration of the government. 

About the Author(s)

David Golove

Hiller Family Foundation Professor of Law at the New York University School of Law