Legal Commentary

Why Congress Played No Role in the Libya Intervention

By Eric Posner

 Congress? reaction to President Obama?s decision to launch a military intervention in Libya has been supine even by Congress? usual standards. Congress vigorously debated and refused to authorize President Clinton?s military intervention in Kosovo in 1999 (Clinton intervened anyway). Congress debated and authorized the attacks on Afghanistan in 2001 and Iraq in 2003. Yet Congress has been mostly silent about the intervention in Libya. Why?

 President Obama is following a long line of precedents in which the executive lanched a foreign war without congressional authorization. The president disavowed these precedents during his campaign; he may or may not attempt to distinguish his campaign statement by invoking the UN security council resolution authorizing the attack, as Truman did for Korea. But this legal wrangling is all superstructure. Congress is disabled in numerous ways from making practical contributions to a war effort. It cannot prevent the president from starting a war, and it is nearly impossible to halt an ongoing war. Wars, then, simply become an opportunity for members of Congress to stake their reputations as hawks or doves for the sake of future elections.

 The Libya intervention provides an instructive example of the disabilities hampering Congress. Events in Libya unfolded with extraordinary rapidity, while the proper American stance depended on numerous constantly changing factors?the security situation in Libya, the attitudes of neighboring states and their populations, and the positions of foreign powers such as the UK, France, China, and Russia. A major source of complexity is that these various attitudes and positions depended in part on what other people thought the United States would do. The rebels might hold out if they believed that the United States would intervene, and by holding out possibly prevail without American intervention. The UK and France might sound the tocsins of war only as long as they believed that the United States would support them if they obtained the acquiescence of other countries, which in turn would care about American attitudes as well. As these various actors calculated their moves, they sent out feelers to the U.S. executive and received responses?promises, hints, suggestions. Eventually, international opinion coalesced and military intervention followed.

 Congress could not play a role. Lacking a leader who could commit it to a course of action, Congress could not make promises. Lacking a single mouthpiece, it could not be consulted. Foreign countries naturally turned to the president. Nor is it realistic for Congress to formally ratify the president?s decision if formal ratification involves the possibility of rejection. Then the next time that the United States is involved in a foreign policy crisis, other countries won?t know who to speak to, and who to believe.

 We live in a system of executive primacy, as Adrian Vermeule and I have argued in our new book, The Executive Unbound: After the Madisonian Republic. It is a consequence of natural institutional developments and necessities. The contrary view, which was written into the U.S. Constitution, could survive only as long as the United States was protected by two oceans from foreign threats and could focus on territorial expansion within a continent populated only by Indians, who were never a major threat?and even then it was honored more in the breach than in the observance. Those who are skeptical about the Libya intervention should address their policy arguments to the executive, and stop complaining that Congress has not authorized the war. Here is Jack Goldsmith arguing that Obama will invoke the UN Security Council resolution as his legal justification (why this is necessary after Clinton?s Kosovo intervention, which had no such resolution, is not explained); here is Andrew Sullivan arguing that Congress should do something, anything (?A congressional vote is also important to rein in the imperial presidency that Obama has now taken to a greater height then even Bush.?); and here is Ilya Somin?s post on the topic yesterday describing the protests of ?several? (nine!) members of Congress.

Full post as published by The Volokh Conspiracy on March 21, 2011 (boomark / email).