More on Libya and the WPR: McKeon's Letter to the President, and a Proposed Senate Resolution

Further to this post on the President's letter to Congress (and its significance in light of the War Powers Resolution, or "WPR"), here are two recent and quite post-worthy developments regarding military action in Libya.  First up is a letter which Congressman Howard P. "Buck" McKeon, Chairman of the House Armed Services Committee, sent to the President on Friday (the same day, apparently, that the President sent his message to Congress.)  The second item is a Senate resolution, introduced Monday by Senators McCain, Kerry, and five others. McKeon's letter is intriguing for a variety of reasons - one being its engagement with the White House, regarding the latter's stance towards the WPR.  McKeon says his intention is not to "second-guess or undermine [the President's] authority as Commander in Chief."  Yet at the same time, he notes that the WPR's 60-day clock is set to run, and President Obama has not explained the Administration's rationale for not obtaining Congress's approval for the ongoing campaign against Qaddafi.  Absent this, McKeon says that he would harbor "serious reservations regarding support for any future request for authorization of operations in Libya."  (The letter does not touch on the explanatory value of the President's own message to Congress - but this likely has more to do with timing than with the text of the President's letter.  Recall that both letters were dated May 20.) Not all Senators share McKeon's reservations, evidently.  That much is implied by the resolution introduced by Senator McCain and six of his colleagues.  Their resolution expresses the "sense of the Senate on United States military operations in Libya," and says among other things that the Senate "supports the limited use of military force by the United States in Libya as part of the NATO mission to enforce United Nations Security Council Resolution 1973 (2011), as requested by the Transitional National Council, the Arab League, and the Gulf Cooperation Council." (emphasis added.)   The proposal also calls for the President "to consult regularly with Congress regarding United States efforts in Libya." Note that the President apparently had seen a draft of the Kerry/McCain resolution.  In his letter Friday, he wrote that "I wish to express my support for the bipartisan resolution drafted by Senators Kerry, McCain, Levin, Feinstein, Graham, and Lieberman, which would confirm that the Congress supports the U.S. mission in Libya and that both branches are united in their commitment to supporting the aspirations of the Libyan people for political reform and self-government."  This might be read to suggest that the Administration sees the Senate resolution as a possible solution to the 60-day dilemma. What if, for example, a revised resolution replaced the word "Senate" with the word "Congress," both chambers of Congress approved the revised proposal, and the President signed it into law?  Such a statute would not satisfy the WPR requirements themselves, because in order to alleviate the 60-day time restriction of the WPR, section 8(a) requires the congressional enactment in question to state expressly "that it is intended to constitute specific statutory authorization within the meaning of [the WPR]."  Nevertheless, such a statute could provide sufficient authorization for a continuing operation in Libya, in effect superseding the WPR as applied to U.S. military activities there.  As the Office of Legal Counsel explained in a memorandum involving an analogous question during the 1999 operation in Kosovo, the current Congress is not and cannot be required to express its intent only in the manner prescribed by the 1973 Congress (although the 1973 enactment does create a background presumption that can affect the interpretation of later congressional actions). Therefore, if the Kerry/McCain resolution clearly reflected a congressional intent to approve continuing operations in Libya--and it would appear to do so if revised and passed in the manner discussed above--then it would supersede the 60-day requirement.  (Thanks to Marty Lederman for flagging the issue.)