President Obama spent weeks marshalling support from foreign governments for a military intervention in Libya but virtually no time consulting with the U.S. Congress or trying to explain to the American people why intervention served our national interests.  Almost three months later, coalition forces are involved in a costly stalemate and we still have no clear sense why our forces are engaged.  It is time for Congress to assert itself, but it should not do so in a way that squanders its authority or ends in an empty gesture.

President Obama was unwise to engage our armed forces in a war in Libya without support from Congress, and lawmakers are right to be angry and demand more information from the President on America’s evolving military mission in that war (the President’s recent characterization of the engagement as “non-kinetic” only makes matters worse), but trying to transform an important military and economic policy debate into a legal dispute won’t work.  Congress has several ways to force the President to follow its will if it acts prudently, but it cannot simply dictate to the President how he uses the military forces it has raised and funded.

Seeking to end all American military action in Libya by a concurrent resolution is not the right way to frame the debate over the President’s polices because such resolutions are as constitutionally flawed as the War Powers Resolution (WPR) that they rely on for authority.  Parts of the WPR that require the President to consult with Congress “in every possible instance” before or soon after military forces are introduced into hostilities and to provide relevant information to Congress on a regular basis thereafter are usually not objectionable in practice, and any president would be foolish not to do that on his own.  But sections of the WPR that purport to require the automatic termination of military action within 60 (or 90) days after commencement unless Congress acts by then to authorize the action are unconstitutional.  The WPR also purports to require that the President terminate any military action if Congress so directs in a concurrent resolution, which is also unconstitutional.

Congress has the upper hand in disputes with the President over military engagements if it acts prudently because it can always defund them.  Preliminary action to do so (including effective hearings to probe military and administration witnesses) can work wonders even before a final vote.  But no president has ever treated the termination clauses of the WPR to be constitutional for one compelling reason:  they aren’t.  Professor John Yoo’s excellent books explain the constitutional text, history, and practice over 200-plus years, but his paper for Heritage in 2006 provides a summary of key authorities relating to the President’s and Congress’s respective war powers. To somewhat oversimplify the analysis that applies to initiating military action: the troops and equipment Congress funds are at the Commander-in-Chief’s disposal for actions he deems proper (with minor exceptions that aren’t relevant here) unless Congress prospectively cuts off the funding for particular uses.  The withdrawal provisions of WPR are unconstitutional for more than one reason but perhaps the most basic is that they amount to tactical battlefield commands to the Commander-in-Chief.  A concurrent resolution purporting to require termination of involvement would be ineffective for the additional reason that it is not a bill presented to the President for his approval, and thus, does not comply with the constitutional requirements for making a law.

Nevertheless, one common, but mistaken, belief is that the WPR remains the “law of the land” until it is struck down by the courts.  Under this erroneous theory, a President can’t lawfully ignore the provisions of the WPR to terminate military action after 60 (or 90) days unless the WPR is repealed or a court strikes it down.  The truth is this:  no unconstitutional law is or ever was the “law of the land.”  When a court eventually strikes down a law like the WPR, that simply confirms it always was unconstitutional.  The legal term is “void ab initio,” meaning invalid from inception.  It was only masquerading as a law.  So how should the branches resolve the issue of whether the WPR is a real law or not, especially if the courts have not provided a definitive constitutional ruling?

In most cases, presidents wisely choose not to provoke a constitutional conflict if they can avoid it, and that is why they say that they are acting “consistent with” or “not inconsistent with” the terms of the WPR but not “pursuant to” it when they report to Congress.  But presidents have an obligation to the institution of the Presidency under the Constitution to defend it when necessary.  And when a purported law unconstitutionally intrudes on presidential authority, he need not wait for a court ruling to confirm as much.  Indeed, since the federal courts are forbidden to provide “advisory” opinions, he can’t procure a court ruling unless there is a live and “justiciable” controversy.  Sometimes, he must follow his faithful interpretation of the supreme law of the land, the Constitution, and let someone else try to hale him into court.

Americans should think long and hard who they make their Commander-in-Chief, but his power does not wax or wane depending on his ideology or political party.  He can use his power well or foolishly, but that cannot change the nature of the authority granted by the Constitution to the office he holds.

In short, the President would not be acting unlawfully if he ignored any attempt by resolution to enforce the WPR’s termination rule, regardless of any vote.  So why would Congress squander its superior checks on the President’s actions (through its legislative power of inquiry, its control of the purse, the Senate’s power over military and Defense Department confirmations, and so on) with an empty gesture that some might privately laugh at?

Congress should stop trying to turn a serious policy debate that it can win into a constitutional case that it will surely lose.  Instead, Congress should turn to and use its constitutionally-enumerated powers.  With them, Congress will find it retains the upper hand in any dispute of this nature.