Bruce Ackerman and Oona Hathaway: Death of the War Powers Act?

Bruce Ackerman and Oona Hathaway are professors of law and political science at Yale.

This week, the War Powers Act confronts its moment of truth. Friday will mark the 60th day since President Obama told Congress of his Libyan campaign. According to the act, that declaration started a 60-day clock: If Obama fails to obtain congressional support for his decision within this time limit, he has only one option — end American involvement within the following 30 days.

Obama has not only failed but he hasn’t even tried — leaving it to Sen. Richard Lugar, the ranking Republican on the Foreign Relations Committee, to call for a “specific resolution that would give [the president] authority.” Neither the president nor the Democratic congressional leadership has shown any interest. They have been sleep-walking their way to Day 60.

Obama’s politics of silence contrast sharply with clear and consistent legal pronouncements of the executive branch. Richard Nixon vetoed the act in 1973, precisely because it imposed restraints on presidential warmaking. But two-thirds of both houses of Congress overrode his veto, and the presidency soon fell into line. Jimmy Carter’s Justice Department expressly affirmed the constitutionality of the 60-day clock in 1980 — and its verdict has not been challenged by executive-branch lawyers.

Obama has continued this tradition. His March 21 letter to Congress telling of the Libyan campaign stated that it was “consistent with the War Powers Resolution.” And his Justice Department issued an opinion that acknowledged the 60-day rule without questioning its constitutionality.

Why, then, hasn’t the president been pressing Congress to approve the war before the looming deadline?..

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