The bombing campaign in Libya continues into its 72nd day without the consent of the U.S. Congress -- breaking the 60-day limit for unilateral presidential war-making. With the Justice Department providing no public explanation for this breach, lawmakers are beginning to take matters into their own hands.
On Wednesday, June 1, the House of Representatives delayed a vote on a resolution insisting that President Barack Obama bring the Libya mission to a speedy close; but expectations are that the measure will be reconsidered on Friday. The Senate, for its part, will soon take up a bipartisan measure supporting the war. Meanwhile, with no U.S. domestic debate, NATO has announced it will continue its operations in Libya for another 90 days.
We are at a constitutional crossroads, similar to the one the United States confronted in 1973 when Congress enacted the War Powers Resolution, which set the 60-day limit, over Richard Nixon's veto. The Constitution famously grants Congress the power to declare war, but Nixon continued to fight in Vietnam for three years after Congress had withdrawn the Gulf of Tonkin resolution authorizing the conflict.
Faced with this plain constitutional violation, Congress acted decisively to restore the system of checks and balances. For centuries, the president and Congress had wrangled over the kind of actions that counted as a "war" for constitutional purposes, with presidents exploiting legal ambiguities to cut Congress out of key decisions. The act broke this impasse by imposing a time limit on all "hostilities" -- a functional term meant to eliminate legalistic evasions the White House had developed over what counted as "war." Henceforward, the 60-day deadline would apply whenever the president began "hostilities," and if he failed to gain congressional approval, the act gave him 30 days to terminate the military operation.
This clear and simple 60/30-day setup is especially important at a time when other restraints on presidential war-making have atrophied. During the era of the Founding Fathers, Congress could back up its constitutional authority with its power of the purse. For example, when President George Washington responded to military defeats on the frontier by escalating the conflict, he got Congress to give him $532,449.76 and 2/3 cents for his war -- note the 2/3 cents!
It's a lot harder to do so now. The Libya campaign has already cost three-quarters of a billion dollars, and yet Obama hasn't had to ask Congress for a dime. He has funded the war entirely out of the general $600 billion appropriated to the Defense Department.
This leaves the time limit as the only effective mechanism for preserving the Founders' commitment to congressional control. Unlike with many other areas of law, the courts can't be counted on to translate abstract principles into concrete rules. So far as war-making is concerned, they have left it to the political branches to work the matter out -- which is precisely the purpose of the War Powers Resolution.