Jack Goldsmith

Kucinich Calls the Question on Libya War Powers

Last week, voting on amendments on the 2012 National Defense Authorization Act, the House of Representatives began taking action to limit U.S. military involvement in Libya's civil war.

Now the House leadership has agreed to a vote on House Concurrent Resolution 51, introduced by Ohio Representative Dennis Kucinich, which would direct the President, pursuant to the War Powers Resolution, to remove U.S. armed forces from the Libya war. The vote could come as early as Wednesday afternoon.

The U.S. military intervention in Libya was never authorized by Congress, and thus violates U.S. law and the U.S. Constitution.

Some have argued that other Presidents have violated the War Powers Resolution, therefore it is no big deal. This is a breathtaking argument on its face: "everyone breaks the law." But moreover, as the New York Times noted on May 25:

 

many presidents, citing their power as commander in chief, have bypassed a section that says they need prior Congressional authorization to deploy forces into hostilities, except if the country is under attack. But there is far less precedent of presidents' challenging another section that says they must terminate any still-unauthorized operations after 60 days. In 1980, the Justice Department concluded that the deadline was constitutional. [my emphasis]

On May 20, the New York Times reported, referring to the 1980 Justice Department memorandum,