It's a Simple Fact: Obama Is Now Waging an Illegal War

Regardless of whether one loves or loathes the president, or how one views his intervention in Libya, it is simply a conclusive fact that Barack Obama is now pursuing an illegal conflict. And a timid congress, so inured to our nation's permanent state of war, isn't calling him on its illegality.

The War Powers Resolution of 1973 is not an ambiguously worded statute. Passed over a presidential veto in the latter stages of the Vietnam conflict, it was designed to be a check on the executive branch's authority to enter the United States into far-flung hostilities. Among other things, the resolution requires the president to “terminate any use of United States Armed Forces” after 60 days unless Congress specifically authorizes the action, grants an extension or “is physically unable to meet as a result of an armed attack upon the United States.”

The deadline for getting Congress to authorize military action in Libya came and went on May 20. According to the New York Times, Obama sent a letter to Congressional leaders in which “he did not directly ask for a resolution authorizing the action or concede that it was necessary.” Meanwhile, “Administration officials offered no theory for why continuing the air war in Libya in the absence of Congressional authorization and beyond the deadline would be lawful.”

It isn't. At least Bill Clinton offered a “theory” for continuing the air campaign in Kosovo for two weeks after that deadline passed; he said that Congress had appropriated funds for the campaign, which amounted to tacit authorization to continue the fight. The Obama administration is simply thumbing its nose at the law.

It's likely that if one polled Americans about their views of this development, they wouldn't much care. But they should. The separation of powers is one of those "first principles" that should supersede partisanship or ideology. We have now come to the end of a long slippery slope: the Constitution grants Congress the sole power to declare war (scholars have long debated whether that actually means waging war); the War Powers Resolution granted the executive branch the power to deploy troops in an emergency situation and then get Congress to sign off; and now we appear to have arrived at a point where there is effectively no check on the executive's ability to deploy U.S. troops anywhere in the world. The administration isn't even offering a “theory” of how it might be legal to blow the deadline in the Libyan context.

The administration shouldn't bear the blame for this development alone. A small number of lawmakers have sent letters to the White House asking the administration to comply, but it is ultimately up to Congress to assert its authority, and a divided and dysfunctional legislature has shown little will to challenge the White House on matters of war and peace.

Since its passage almost 40 years ago, presidents have asserted that the War Powers Resolution is unconstitutional. Congress based the statute on the Necessary and Proper clause, which gives the federal government – all three branches – the authority required to carry out its enumerated powers. But both the executive and legislative branches know that if the statute is litigated, one or the other will lose some modicum of power, so they have left the issue unresolved.

A president can't simply ignore a law that he deems unconstitutional – it's the law of the land unless or until it is struck down by the judiciary. So, we've been left in a legal limbo in which the founders' brilliant concept of checks and balances between separate branches of government has become moot when it comes to deploying U.S. forces overseas.