As of today, President Obama is out of compliance with the War Powers Act, which requires the president to obtain congressional approval for military action within 60 days. Absent such approval, the president must terminate the military action after 60 days, unless he certifies in writing that “unavoidable military necessity” requires the continued use of military force, in which case the president may delay the withdrawal for at most 30 additional days.
Sixty days after the opening of the Libyan campaign, President Obama has not even tried to obtain Congressional approval, nor has he certified “unavoidable military necessity.”
Of course, it is an open question whether the War Powers Act is constitutional. But presidents usually follow the rules anyway, even while maintaining they are not required to do so. Indeed, the Obama administration pledged to act “consistent” with the Act less than two weeks ago.
Personally, I think it’s a tough call whether the Act is constitutional or not. In any case, I think the best policy is to preserve the useful ambiguity that has largely prevailed since 1973, in which presidents have followed the Act’s requirements, but have maintained they were not required to do so. For Obama to abandon that policy, for no apparent reason at all, is foolish.
POSTSCRIPT: It is interesting to note that Obama is the second president to violate the War Powers Act. The first was our last Democratic president, Bill Clinton. In 1999, President Clinton continued his Kosovo campaign for over 60 days without obtaining approval. His legal team argued that Congress had implicitly given approval by funding the campaign, but that argument was absurd, since the Act says explicitly that funding cannot be construed as approval:
Authority . . . shall not be inferred — from any provision of law . . . including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities . . .