April 22, 2011 12:49PM

More on Libya and Constitutional War Powers

So it turns out that, per CBO's numbers, the "epic" budget showdown didn't even produce enough cuts to pay for a week of bombing Libya.

On that subject, as I noted last week, the Obama administration's Office of Legal Counsel recently released its memo arguing that our Libyan adventure is constitutional. And that memo is one sorry piece of work.

Over at the Washington Examiner’s “Beltway Confidential” blog, I’ve been commenting on various aspects of the OLC memo, and I thought I'd link to some of that discussion here.

Recently, I addressed two of the OLC's arguments: (1) that what we're doing in Libya isn't "war"; and (2) that the 1973 War Powers Resolution gives the president a 60-to-90-day "free pass" to wage war without congressional authorization. Neither argument comes close to showing that the president's actions in Libya are legal.

Make no mistake, what we're doing in Libya amounts to war. Defense Secretary Gates admitted as much recently, albeit reluctantly:

It's fairly common to hear supporters of unrestrained presidential war power argue that whatever "war" is, it's far too ambiguous a concept for us to insist that the president be restrained by constitutional niceties like prior congressional approval.

But this is a silly argument.

Yes, there are line-drawing problems with the "Declare War" Clause, as there are with every other clause in the Constitution. That doesn’t mean there are no lines — the color gray isn't a refutation of the categories "black" and "white."

And the Libyan intervention is pretty black and white. This is a nondefensive, unprovoked use of force, ordered by our president to, as he put it, prevent a massacre that would have “stained the conscience of the world.” (By the way, there's good reason to doubt that was the case, Professor Alan Kuperman argues.)

The OLC's argument that the War Powers Resolution empowers the president to launch "limited" wars fares no better. Put briefly, (1) the WPR makes clear that the president's constitutional powers are limited to defensive uses of force; (2) the text underscores that the WPR doesn't purport to add anything to the constitutional powers of the president; and (3) it couldn't in any event: the Constitution trumps a statute, and, like it or not, the Constitution doesn't allow the president to start wars.

Even so, the WPR — passed over Richard Nixon's veto in 1973 to restore congressional control over the decision to go to war — hasn't much inconvenienced any president since. Perversely, they actually use it as an argument for presidential war-making, which is why it may have done more harm than good, overall [.pdf].

As Charlie Savage pointed out recently in the New York Times, the 60-day clock runs out in mid-May. We're still bombing Libya now, and President Obama recently approved the use of armed Predator drones there. If this keeps up for another month, then Obama will become the second Democratic president in a row to wage war beyond the WPR's 60-day limit.