Opinion Brief

Congressmen sue Obama over Libya: Can they succeed?

A bipartisan group of lawmakers is filing suit against the president, saying he broke the law by going to war in Libya without their permission

Ten congressmen, including Reps. Dennis Kucinich (D-Ohio), Walter Jones (R-N.C.), John Conyers (D-Mich.), and Ron Paul (R-Texas), are suing President Obama, claiming he broke the law by not getting congressional approval for the Libya war. They want a judge to order Obama to pull U.S. troops out of the conflict. The White House, responding to an earlier ultimatum from House Speaker John Boehner (R-Ohio), argues that since U.S. forces haven't been engaged in "hostilities" in Libya since April, the War Powers Act doesn't apply. Who's going to win this legal showdown?

Congress has the law on its side: Obama is blatantly violating the War Powers Act, and it's great that Congress is finally growing a spine, says Glenn Greenwald at Salon. "The very idea that the president can start and prosecute wars on his own, without democratic consent, is not only lawless but is the hallmark of an empire, and it's long past time to put an end to that abuse." And Obama's excuse, that the Libya war doesn't count, isn't just "patently false," it's downright "Orwellian."
"Rep. Brad Sherman on the illegality of the Libyan war"

Obama's hardly the first president to make this case: If Obama's interpretation of the War Powers Act sounds unpersuasive, "it at least has a strong foundation in the past practice of the executive branch," says Robert Chesney at Lawfare. Presidents from Gerald Ford to Bill Clinton have used similar arguments to get around the War Powers Act. So even if Obama's case isn't "unassailable," it also isn't unreasonable. And suing him over it is a "non-starter."
"White House clarifies position... U.S. forces not engaged in 'hostilities'"

Regardless, the courts won't touch this: Whatever the merits of the congressmen's legal argument, "it is extremely unlikely this lawsuit will go anywhere," says Jonathan Adler at The Volokh Conspiracy. In fact, I would be "simply flabbergasted" if a court sided with Kucinich and Co., or took up the case at all. Nor should they. If Congress thinks Obama is overreaching, it can call hearings, cut off funding for the war, or even impeach him. Suing him is just political theater.
"A war over war powers?"

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