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Fisher: Senate Should Protect War Powers on Libya

The Senate resolution accepted the administration’s position that military action in Libya was authorized by U.N. Security Council Resolution 1973. Neither House resolution regarded U.N. resolutions as a constitutional substitute for Congressional authorization. The Senate resolution agreed that the goal of U.S. policy in Libya, “as stated by the President, is to achieve the departure from power of Muammar Qaddafi and his family.” Regime change was not part of Obama’s promised “limited” action or Security Council Resolution 1973. Subsequent Senate legislation, S.J.Res. 20 introduced on June 21, is designed to authorize U.S. armed force in Libya for an additional year. A series of “whereas” clauses accepts Security Council resolutions as “mandates” for U.S. military action. The joint resolution agrees that “the goal of United States policy in Libya, as stated by the President,” is to drive Gadhafi from power. Nothing in the Senate resolution objects to Obama starting the war on his own and failing to seek authorization from Congress.

The two House actions on June 24 were quite extraordinary. The chamber voted down a resolution that would have authorized U.S. military action in Libya 123-295, with 70 Democrats joining Republicans voting no. A separate measure, to provide limited financing for the war, was rejected 180-238. Only 36 Democrats favored this bill.

Critics of the House action called the two votes a “mixed message.” Yet the legislative communication was quite clear on the fundamental point of whether to authorize and fund the war. On both counts: no. There was deep resentment from Democrats and Republicans to Obama’s constitutional position that he did not need Congressional authorization. A bipartisan group of House Members plans a subsequent vote to cut funding for the war.

In terms of legislative remedies, the House is moving toward the protection of Congressional authority. The Senate is not. Why are Senators not exercising their independent duty to scrutinize and check presidential usurpations of the war power which the Constitution vests in Congress? Members of Congress take an oath of office to support and defend the Constitution, not to support and defend the president. Unless each branch fights off encroachments by another branch, the system of checks and balances designed to safeguard constitutional liberties cannot function.

Louis Fisher is author of “Presidential War Power.” Before retiring last year from the Library of Congress, he worked for four decades with lawmakers and committees on a range of constitutional issues, including the war power. 

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