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Has Obama Breached His Constitutional Power in Libya?

Has Obama Breached His Constitutional Power in Libya?

By David Paul Kuhn - May 23, 2011

In late September 1983, one month before the bombing of the U.S. Marine barracks in Beirut, the Reagan administration continued to insist that the War Powers Act did not apply to the U.S. military presence in Lebanon.

''The administration wants our stamp of approval,'' said a young Sen. Joseph Biden, ''but it is unwilling to commit itself to our laws.''

About a quarter-century later, Sen. Barack Obama told The Boston Globe, "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."

Today, Obama and Biden lead an administration engaged in a military conflict without legislative consent. The 1973 War Powers Resolution compels presidents to secure congressional approval within 60 days of U.S. military forces' "imminent involvement" or "introduction" into "hostilities." U.S. operations in Libya violated that deadline on Friday.

Congressional leaders barely shrugged. The chattering class is quiet. President Obama, a former constitutional law professor, wrote a letter late Friday denying the War Powers Act applies to the current situation.

The president said he welcomed "Congressional action in support of the mission," which "would underline the U.S. commitment." But the administration argues this "support" is not required. It says the action in Libya is not war but, euphemistically, a "limited kinetic action."

Yet Obama has already applied the act to Libya. On March 21, to comply with the law, he officially notified Congress that the military was engaged there. "I am providing this report as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution," the letter closed.

GOP leaders are no more eager to take up this constitutional fight than the lawmakers of Obama's own political party. A supporting resolution means Republicans sign off on the war. Their silence allows them the liberty to criticize the president's actions, should the conflict come back to haunt him. Americans remain ambivalent about the use of U.S. forces in Libya.

Yet this is a time when conservative activists carry copies of the Constitution in their pockets. Tea party protesters invoke the revolutionary "don't tread on me" motto. House Speaker John Boehner, like so many GOP leaders, publicly expressed his reverence for the Constitution during the health care debate. Yet as another president usurps the legislative branch's most solemn of power -- to declare war -- Republican leaders are not crying, "Hell, no!"

Eric Cantor's office told The Hill last week that the House majority leader was more concerned with "the lack of a defined mission and purpose" than the president's authority under the act.

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David Paul Kuhn is a writer who lives in New York City. His novel, “What Makes It Worthy,” will be published in February 2015.

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