The President’s actions in Libya have put the U.S., the Congress, and NATO in a bind. The Obama Administration’s failure to include Congress in its Libya deliberations prior to launching the operation and its subsequent refusal to address congressional concerns are inexcusable and have justifiably angered Congress.
As frustrating as Obama’s Libya policies are, Congress should act with prudence. It should not immediately terminate funding for the operation, which would force the U.S. to abandon its NATO allies in the middle of a war. Given the commitments already made by the President, Congress should support military operations until the end of the 90-day extension NATO authorized for “Operation Unified Protector” in Libya.
Any funding of operations beyond that date should be prohibited unless supported by specific congressional approval. This is an appropriate constitutional action and a clear alternative to invoking the unconstitutional provisions of the War Powers Resolution. By adopting this course, the U.S. fulfills its obligations to its NATO allies and extricates itself from a failed policy. It also allows a sufficiently reasonable amount of time to transition the NATO effort from an inconclusive military operation that could well fail to a road map that offers the best prospects for the future of the Libyan people.
The establishment of a viable opposition authority in Libya and international pressure that is not military in nature (such as arms and financial embargoes) are more likely than NATO military operations to lead to the end of Qadhafi’s regime. The U.S. should support the continued isolation of the Qadhafi regime and efforts to broker an acceptable resolution of the civil war in Libya. International isolation and the Libyan opposition remain the most important—and in the long run, most sustainable—pressure points on Qadhafi.
There is a better way to handle this than a suit filed today by 10 Members of Congress. The federal courts have dismissed similar suits brought by Members of Congress under War Powers Resolution in the Reagan and Clinton administrations—on standing and other jurisdictional grounds. The DC district court where the suit is filed today is bound by those prior decisions.
If a judge ever were able to rule on the merits of the claims filed today, it would also have to dismiss the claims for several reasons, including that the relevant provisions of War Powers Resolution relied upon in the suit is unconstitutional.
Congress has sufficient power to defund any military action if it exercises its collective, constitutional power to enact such a funding ban, which is another reason the courts will not violate the constitutional separation of powers by aggrandizing to itself the power to act on the petition of 10 Members of Congress. Congress as a whole should consider what legislative action is appropriate, but it should not squander its true legislative authority with empty gestures and resolutions that are unconstitutional.
