The Legally Useless House Resolution to Stop the Libya Intervention
I realize that the two Libya Resolutions being considered in the House are more for political than legal effect, but the Resolution that seeks to check the President's Libya intervention is an especially unfortunate vehicle. It provides in full:
CONCURRENT RESOLUTION
Published by The Lawfare Institute
in Cooperation With
I realize that the two Libya Resolutions being considered in the House are more for political than legal effect, but the Resolution that seeks to check the President's Libya intervention is an especially unfortunate vehicle. It provides in full:
There are, I think, at least two legal problems with this Resolution. The first is that it does not by its terms require the President to stop what he is doing in Libya. It directs the President to remove U.S. Forces from “hostilities with the respect to Libya.” But it does not define “hostilities.” The President is on record as saying that the current level of intervention is not “hostilities” under the WPR. This Resolution does not challenge that interpretation. So the President could respond to this Resolution by saying that he is acting consistent with it because he is not engaging in “hostilities.” The second legal problem is that this is a “concurrent resolution,” made pursuant to Section 5(c) of the WPR, that is not typically presented to the President. In other words it is a legislative veto that is almost certainly invalid under INS v. Chadha. Perhaps the House thinks that a concurrent resolution will help overcome the standing hurdle in the Kucinich war powers lawsuit against President Obama.CONCURRENT RESOLUTION
Directing the President, pursuant to section 5(c) of the War Powers Resolution, to remove United States Armed Forces from Libya. Resolved by the House of Representatives (the Senate concurring), SECTION 1. REMOVAL OF UNITED STATES ARMED FORCES FROM LIBYA. Pursuant to section 5(c) of the War Powers Resolution (50 U.S.C. 1544(c)), the Congress hereby directs the President to remove United States Armed Forces from hostilities with respect to Libya by not later than the date that is 15 days after the date of the adoption of this concurrent resolution, except for those only engaged in— (1) search and rescue; (2) intelligence, surveillance, and reconnaissance; (3) aerial refueling; and (4) operational planning.
Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.
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