Thursday, April 14, 2011
The Office of Legal Counsel last week released a memorandum advising that the President has constitutional authority to authorize military operations in Libya. (This obviously isn't a surprise, but it may be worth a look.)
The memo, dated April 1 but released last week, first analyzes the President's constitutional authority to direct the use of military force in Libya and then analyzes whether congressional approval was constitutionally required.
As to the first question, the OLC concluded that the President's authority to direct military force in Libya derived from his Article II authorities as commander in chief and chief executive, his constitutional authority over foreign affairs, and the President's historical exercise of authority without prior congressional approval. The OLC wrote that Congress recognized this authority in the War Powers Resolution (even if the WPR doesn't provide affirmative statutory authority for military operations), which provides for short-term use of force by the President without prior congressional approval.
The OLC wrote that the President could exercise this authority in order to protect sufficiently important national interests. Here, those interests were preserving regional stability and supporting the credibility of the United Nations Security Council (through its Resolution 1973, which imposed a no-fly zone and authorized the use of military force to protect civilians).
As to the second question--congressional power to declare war, the "one possible constitutionally-based limit on this presidential authority to employ military force in defense of important national interests," op. at 8--the OLC concluded that the military commitment here did not amount to a "war" for the purpose of the Declaration of War Clause. It noted that President Obama's commitment of force was limited to airstrikes and associated support missions, with no ground troops, and that the "limited mission" did not "aim at the conquest or occupation of territory." (Quoting Proposed Deployment of United States Armed Forces into Bosnia, 19 Op. OLC at 333.)