Fox News reports:
A group of lawmakers filed a federal lawsuit Wednesday against the Obama administration, questioning the constitutional and legal justifications for military action in Libya. The bipartisan group is being led by Reps. Dennis Kucinich, D-Ohio, and Walter Jones, R-N.C., and includes GOP presidential candidate Rep. Ron Paul.
We used to have a very useful ambiguity as regards the status of War Powers Act. Presidents would follow its processes, while maintaining they were not required to do so. Unfortunately, President Obama damaged that ambiguity by flagrantly disregarding the Act, and now this lawsuit threatens to destroy what’s left.
ASIDE: I don’t blame those guys for filing the suit. I’m against it, but people like Kucinich and Paul are going to do what they are going to do. This was predictable given Obama’s actions.
Whatever we have after this suit won’t be as good as what we had before. Either the courts will strike down the War Powers Act (which would be bad), or they will uphold it (which would be worse), or they will find some bogus justification to avoid answering the question (the best outcome from a policy perspective, but infuriating from a jurisprudential perspective).
I think the most likely outcome is the latter — a narrow ruling that dodges the central issues, but I wouldn’t bet the farm against the courts ruling on the War Powers Act. After Boumediene, nothing seems impossible. Also, if the courts were ever going to rule on the War Powers Act, the Libya campaign is the sort of case in which they would do it: a low-profile conflict with no vital national interest at stake. (Yes, I was in favor of it, but let’s be honest.)
Meanwhile, President Obama argues that the War Powers Act doesn’t apply because we are not involved in hostilities. That sounds ridiculous on the face of it, but it strikes me as just the sort of argument that courts might be inclined to seize on if they want to avoid the central issues.
Why President Obama couldn’t have just sought Congressional approval is beyond me. It’s not like he would have lost.
UPDATE: Ilya Somin takes a look at the legalities.
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