Congressional indignation is growing over Libya. Now that U.S. military operations have continued for more than 60 days without congressional authorization, some have accused President Obama of violating the War Powers Resolution. But Congress has little standing to accuse the president of copping out on Libya.
The 1973 legislation designed the 60-day clock as a default mechanism that would kick in when Congress has not acted either to authorize or forbid a foreign military operation. President Richard Nixon vetoed the resolution largely because of the 60-day clock, arguing that it was unconstitutional because the only permissible way for Congress to tie the president’s hands is to pass legislation and present it for the president’s signature or veto. Nixon complained that “Congress is here attempting to increase its policy-making role through a provision which requires it to take absolutely no action at all. In my view, the proper way for the Congress to make known its will on such foreign policy questions is through a positive action . . . with each member taking the responsibility of casting a yes or no vote.”
Every president since has come to share Nixon’s view that the 60-day clock is unconstitutional. If Obama ultimately admits what his actions in Libya have made clear — that he doesn’t accept the 60-day clock either — he won’t be the first president to flip from supporting the War Powers Resolution as a candidate to opposing it in office. Jimmy Carter supported the resolution as a presidential candidate, but when Rep. Henry Hyde sought to repeal the resolution in 1995, he circulated a letter from Carter stating, “I fully support your effort to repeal the War Powers Resolution. Best wishes in this good work.”
Nor is Obama the first president to continue military operations after the 60-day clock ran out. Bill Clinton continued active military operations in Somalia for most of 1993 — including the “Black Hawk Down” incident — even though Congress never authorized that deployment.
The War Powers Resolution contains mechanisms to make it easier for Congress to take a stand when the president deploys U.S. forces into combat. It establishes an expedited procedure in the House and Senate permitting any member to force a floor vote on a resolution directing the president to withdraw U.S. forces from such deployments, and a similar procedure to force a vote on whether to declare war. That neither mechanism was invoked by any lawmaker before the 60-day deadline speaks volumes about Congress’s interest in actually voting on the Libya operation.
One reason for this reluctance may be that votes on the use of force can define careers, and lawmakers find it hard to predict what history will judge to have been “right.” Al Gore was a viable candidate for national office in 1992 because, unlike most other Senate Democrats, he had defied his party leaders and voted in favor of the Persian Gulf War. Obama was a contender in 2008 because he had not voted for war in Iraq.
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