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The Constitutional Clock Is Ticking on Obama's War—A Commentary by Bruce Ackerman ’67 and Oona Hathaway ’97

The following commentary was published in Foreign Policy on April 6, 2011.

The Constitutional Clock Is Ticking on Obama's War
By Bruce Ackerman ’67 and Oona Hathaway ’97

It's now clear that the Libya campaign won't last "days, not weeks," as U.S. President Barack Obama promised, but rather, months — and maybe years. Before U.S. involvement stretches that long, however, the administration will have to confront the 60-day time limit set by the War Powers Resolution, during which the president may take unilateral military action without a congressional resolution. After the 60th day, if Congress refuses to consent to the operation, the president is required to withdraw from Libya within 30 days. Today is day 20.

Yet over the past week, the administration has become "evasive and vague," as Rep. Brad Sherman put it last week, about the need to comply with the resolution's time schedule. The question is whether the president will take the lead in lobbying for the necessary congressional support, or whether he will leave Congress to its own devices. The Senate already passed an advisory resolution on March 1 encouraging the U.N. Security Council to impose a no-fly zone, but the War Powers Resolution demands that both houses give their formal consent, not merely cheer on from the sidelines. While leading Republicans in the House of Representatives have joined senators like John McCain in backing the Libya campaign, the White House seems reluctant to push for a formal vote. Indeed, the administration suggested on March 24 that "time-limited, scope-limited military action" isn't the sort of thing the Constitution had in mind when giving Congress the power to declare war.

This narrow redefinition of "war" represents a fundamental breach with constitutional tradition. "Time-limited, scope-limited military action" is as old as the republic. In 1798, the newly formed United States launched its first military struggle as a "limited war" with France. Instead of standing on the sidelines, Congress passed four separate statutes spelling out the scope and limits of the conflict. The Supreme Court then made it clear in 1800 that limited, as well as unlimited, wars must be approved by Congress.

In the modern era, all U.S. conflicts have been limited wars. The last time Congress pledged to devote "the entire naval and military forces of the United States and the resources of the Government" was when it declared war on Germany in World War II. In the aftermath of the Vietnam War (perhaps the most scarring limited war), Congress saw the need to pass the War Powers Resolution, which aimed to "fulfill the intent of the framers of the Constitution of the United States" by ensuring that the "collective judgment of both the Congress and the President" would control the use of force.

President Richard Nixon vetoed the resolution in 1973 precisely because it placed constraints on unilateral war-making by the executive office. But as the measure had the broad support of ordinary Americans, it was passed by a two-thirds majority in both the Senate and House. This judgment, made by a generation that had struggled through World War II, the Korean War, and the Vietnam War, should not be dismissed lightly.

The Justice Department has itself recognized this point. In 1980, its Office of Legal Counsel affirmed the constitutionality of the 60-day limit. Its opinion declared that the time limit provided the president with sufficient flexibility "under any scenarios we can hypothesize to preserve his constitutional function as Commander-in-Chief." Certainly, Libya provides no exception.

Some, including John Yoo, argue that the time limit established by the resolution isn't really necessary. They suggest that Congress can stop a war simply by denying the president funds needed for the conflict. But this simply isn't true in this day and age. The current $660 billion Pentagon budget allows the president to continue the war for a substantial period without seeking a special appropriation. Indeed, Obama has already spent more than $550 million on the Libya campaign without formally requesting a single cent of it. The moment for congressional decision should not depend on creative bookkeeping in the Defense Department. Until the president comes forward with a special request for new money to pay for the war, it will require two-thirds of both houses of Congress to deny him funding for the military operation over his likely veto.

Obama appears even more unwilling than his much-criticized predecessors to reach out to Congress. President George W. Bush got Congress to sign onto the wars in Afghanistan and Iraq before the first American assault; and President Bill Clinton won congressional approval for a targeted appropriation in support of his Kosovo campaign during the 60-day window established by the resolution. Obama should take the same course, building the bipartisan coalition required to redeem his unilateral action. Congressional buy-in is especially important now that the Libya campaign threatens to drag on. If the president tries to go it alone now, he greatly increases the risk of partisan attacks in the future. Beyond the pure constitutional arguments, there's a positive political calculation to be made here as well.

Equally important, an exercise in unilateralism will establish a dangerous precedent in presidential war-making for his successors to exploit. By repudiating the 60-day restriction on his power, Obama opens the way for future presidents to launch "limited" wars that are far more ambitious than the rather modest Libya incursion. As a former constitutional law professor in Chicago, the president surely must understand the long-term consequences that would follow from eroding the checks on presidential power to wage war. Indeed, such a legacy stands in stark contrast to his assurances on the campaign trail in 2007 that "[t]he 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."