The Obama administration and War Powers Act

The Obama administration bypassed an important Congressional process in the NATO campaign against Libya's Col. Qaddafi. United Nations Resolution 1973 provided the international community's endorsement for a NATO-led humanitarian intervention to protect civilians in Libya. However, under the War Powers Act, the Obama administration had a legal obligation to report to Congress for domestic endorsement as well, and that has not happened.

Article I of the U.S. Constitution gives Congress the power to declare war. However, political sensitivities have increasingly softened Congressional scrutiny of the commander-in-chief, especially in times of war and crises. In the absence of a war declaration, the president can utilize the provisions of the 1973 War Powers Act, which requires the government to report to Congress when U.S. armed forces are deployed in combat.

Under the War Powers Act, the president has 60 days to deploy the military for combat. After the 60 days, the government must report to Congress, which can then decide to approve a 30-day extension of deployment. The Obama administration has continued military involvement in the Libya campaign and extended it for an additional 90 days without Congressional approval. The administration argues this is not illegal since it is a NATO mission.

But Part B, Section 5, of the War Powers Act specifically states that: "Such sixty-day period shall be extended for not more than an additional thirty days 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 …"

Stephen Knott, associate professor in the National Security Affairs Department of the U.S. Naval War College, specializes in the U.S. presidency. According to Knott: "American presidents have ignored [the War Powers Act's] main features," because "every American president since Nixon — Carter wavered a bit on this — believes the War Powers Act represents an unconstitutional infringement on the powers of the president."

The courts do not want to touch this. They want the president and Congress to resolve the matter among themselves.

But for political reasons, members of Congress are often not willing to challenge the commander-in-chief, despite the legal obligation of Congress to keep executive powers in check. Knott says: "Some Democrats and Republicans, when they are in the opposition, will make some noise about presidents 'abusing' their powers, but when their guy sits in 1600 Pennsylvania Avenue they tend to fall silent. All too often it comes down to a raw political calculation," especially in an election climate.

In the case of U.S. forces protecting civilians in Libya, the War Powers Act appears ineffective and, as far as the Obama administration is concerned, irrelevant, since this is a NATO campaign. Officials cite UN Resolution 1973 as the legal provision under which NATO forces are operating in this case, in the context of humanitarian intervention. The War Powers Act has been applied in the past, with the U.S. Marine deployment in Lebanon. However, presently the UN and NATO take precedence over domestic laws, and in the process the War Powers Act is increasingly treated as obsolete.

House Speaker John Boehner has written a letter to the president asking for observance of War Powers Act provisions, and other lawmakers also are demanding that Obama follow the law. But the effort may be futile. Knott is correct in pointing out that this "is another nail in the coffin of the War Powers Act. It was basically dead long before President Obama took this action in Libya."

With this, the power of the executive branch is growing stronger. The more Congress and the judiciary allow the executive to continue deploying U.S. forces unchecked, the greater danger of undermining constitutional checks and balances.

Is this the path we want the country to take?