Yesterday, House Speaker John Boehner released a letter slamming the administration for failing to comply with the 90 day time limit in the War Powers Act, which requires the president to acquire authorization from Congress to continue military operations in Libya:
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 Administration’s 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.
There’s only one problem: The time limit in the WPA isn’t 90 days. It’s 60 days. As former Bush-era head of the Office of Legal Counsel Jack Goldsmith writes, the extra 30 days are permitted only if the president “determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.”
This is an unfortunate error in a letter that charges the President with not paying adequate attention to the WPR. It is also an obvious error. I wonder why the Speaker (or his advisors) made it? Perhaps to distract from the fact that responsible congressional pushback against the President’s Libya intervention under the WPR should have come at least a month earlier.
This doesn’t let the administration off the hook. The president hasn’t taken the necessary action to receive the extra 30 days — in fact, the administration hasn’t even released a rationale for why it is in compliance with the WPA despite not having received certification from Congress. In failing to gain the necessary authorization from Congress, he’s gone farther than his predecessor in asserting that the president has the unilateral authority to wage war without congressional interference. The one thing you could say about Bush is that at least he got ongressional approval for his wars before starting them.
Boehner’s statement, though, illustrates the limits of relying on partisan cynicism to keep presidents in line. The fact that he waited an extra month to do anything about this shows that the Republican leadership isn’t taking the WPA much more seriously than the administration is.
Obama clearly doesn’t take it seriously — now that he is president. While he was running for office, he declared 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.” That was a different time, though, when a Republican president, rather than a Democratic one, was saddled with the burden of managing unpopular conflicts abroad.
To be clear, it would be a good thing if Republicans force the president into compliance with the WPA.But if both sides continue to play politics with the WPA in this manner, there isn’t much hope that there will be lasting change anytime soon.