Dear Mr. President:
Five days from now, our country will reach the 90-day mark from the notification to Congress regarding the commencement of the military operation in Libya, which began on March 18, 2011. On June 3, 2011, the House passed a resolution which, among other provisions, made clear that the Administration has not asked for, nor received, Congressional authorization of the mission in Libya. Therefore, it would appear that in five days, the Administration will be in violation of the War Powers Resolution unless it asks for and receives authorization from Congress or withdraws all U.S. troops and resources from the mission…
Given the mission you have ordered to the U.S. Armed Forces with respect to Libya and the text of the War Powers Resolution, the House is left to conclude that you have made one of two determinations: either you have concluded the War Powers Resolution does not apply to the mission in Libya, or you have determined the War Powers Resolution is contrary to the Constitution. The House, and the American people whom we represent, deserve to know the determination you have made.
Therefore, on behalf of the institution and the American people, I must ask you the following questions: Have you or your Administration conducted the legal analysis to justify your position as to whether your Administration views itself to be in compliance with the War Powers Resolution so that it may continue current operations, absent formal Congressional support or authorization, once the 90-day mark is reached? Assuming you conducted that analysis, was it with the consensus view of all stakeholders of the relevant Departments in the Executive branch? In addition, has there been an introduction of a new set of facts or circumstances which would have changed the legal analysis the Office of Legal Counsel released on April 1, 2011? Given the gravity of the constitutional and statutory questions involved, I request your answer by Friday, June 17, 2011.
I wrote about Boehner’s War Powers brinksmanship a few weeks ago but I’m still not sure what his game is. He was, I think, cowed into demanding that O seek authorization of the mission after Kucinich’s resolution demanding full withdrawal from Libya started to gain traction with Republicans. Boehner knew that having a chunk of the caucus support a measure like that would risk a conservative split between hawks and libertarian types, so he rammed through his own milder proposal instead that put the ball on authorization back in Obama’s court. The White House’s reaction: *Shrug.* Now Boehner is dropping this ultimatum on him, which, if Obama complies, would force … precisely the sort of divisive vote among Republicans in the House that I thought Boehner was trying to avoid by torpedoing Kucinich. I don’t get it.
Maybe JB thinks a court battle over the War Powers Act would be politically useful? It’d certainly underscore the perceptions of Obama among some lefties and libertarians as a lawless Bushian cowboy, eager to protect his kingly prerogative to wage war without anyone’s approval. But it’ll also bolster the perception among hawks that he’s a stronger-than-expected C-in-C who’s unwilling to let Congress pull the rug out from under airmen eager to complete their mission. And of course, a legal battle also risks polarizing Republicans on the constitutionality of the War Powers Act. All of which is to say, while I respect Boehner for sticking to the law, he’s sticking to it to a surprising and not necessarily politically advantageous degree. If he’s that down on the mission, why didn’t he force a vote on Kucinich’s resolution without offering any alternatives?
Here’s McCain suggesting that the White House will make the case to Congress for the mission within the next day or two, although he’s unclear on whether that means a request for authorization or just a little “FYI” session. I’m guessing the crux of Obama’s argument will be that there are no servicemen in harm’s way over there, only drones and other unmanned technology, and therefore Congress doesn’t have to approve anything. Oh, by the way: I might have missed it, but did John King ask a single question about the War Powers Act at the debate last night? This subject has, after all, come up now and again over the past three months since Obama decided unilaterally to commit U.S. assets to the Libya mission. One would think he might have been able to slip it in between asking the candidates whether Moe, Larry, or Curly was their favorite stooge or whatever.