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Will Congress Stand Up to the Imperial Presidency?

March 25, 2011 - by Donny Shaw

Back when Barack Obama was a member of the Senate, he had a reputation as a sharp critic of the expansion of presidential powers. For example, when the Bush Administration was looking into expanding the Iraq war into Iran, Obama introduced a resolution stating that Congress would have to authorize military action in Iran in order for it to be lawful. “Any offensive military action taken by the United States against Iran must be explicitly authorized by Congress,” the resolution reads. It goes on to declare that no executive orders or laws previously adopted by Congress should be construed to authorize or encourage the use of military force in Iran.

But now that he is President, Obama doesn’t seem to believe any longer that he needs the authorization of Congress to go to war. On Saturday, March 19, just as Congress was scheduled to go on vacation, he unilaterally authorized the U.S. military to lead a UN coalition in missile attacks on Libyan military infrastructure and troops that pose a threat to the rebel opposition. 

A few days later, Obama formally notified Congress of the military action, saying that he was doing so “consistent with the War Powers Resolution.” But the War Powers Resolution does not simply require the President to notify Congress of military action within a certain time period. It limits the President’s legal authority to authorize military force to three situations: when there is "a declaration of war, "specific statutory authority, or “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” Read the War Powers language for yourself here.

The often-repeated claim that a President can legally authorize military action outside of these three types of situations as long as they notify Congress of the action within 60 days stems from a misreading of the War Powers Resolution. The resolution states that in cases where military action is authorized without a declaration of war from Congress, the President must notify Congress of the action in a report. Then, according to the resolution text, “within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States.”

The law is clear — Presidents are only allowed  a 60-day window to authorize military action without a declaration of war from Congress if they have a “specific statutory authority” or if there is a “national emergency created by an attack upon the U.S.” In the case of Libya, neither apply.

When Congress comes back into session on Tuesday it’s going to be very interesting to see what, if anything, they do to reaffirm the rule of law and reclaim their authority to check the President’s powers as Commander-in-Chief. Will anyone play the role of Senator Obama and lay out a strong case against the abuse of presidential power, or will this whole thing be forgotten now that the U.S. military is backing off on their leadership role in the attacks? 

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