The Spectacle Blog

Walter Dellinger Defends the Constitutionality of Obama’s Libya Intervention

By on 3.22.11 | 12:33PM

Walter Dellinger makes the case that the president was acting in accord with the Constitution when he ordered the military into Libya without a vote of Congress. The trouble with his argument is that it takes the president's constitutional power to deploy troops to protect Americans and construes it more broadly to allow the president to deploy troops to protect a foreign population -- which is the explicit mission in Libya, insofar as we have one.

As Dellinger notes, this comports with the legal advice he has given previous presidents. I'm just not sure it  comports with the Constitution. The president's powers as commander-in-chief were supposed to give him enough discretion to keep the country safe in situations where Congress cannot respond quickly enough, but not to give a president wide latitude to enter wars of his own choosing. Dellinger also writes of the War Powers Resolution:

The resolution requires that, in the absence of a declaration of war, the president must report to Congress within 48 hours of introducing armed forces into such circumstances and must terminate the use of U.S. armed forces within 60 days unless Congress permits otherwise. This structure makes sense only if the president may introduce troops into hostilities or potential hostilities without prior authorization by the Congress: the resolution regulates such action by the president and seeks to set limits to it.

To the extent that his final sentence is true, that seems like an argument against the constitutionality of the War Powers Resolution -- which is as much an abdication of congressional war powers as an assertion of  them -- rather than an argument for the constitutionality of Obama's actions regarding Libya.

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