Obama and Libya: The Authority to Act? (Plus a note on Pawlenty)

Muammar Gaddafi is an evil man who sponsored terrorism, suppressed, democracy, and has killed and tortured his people. I cheered when Libyans rose up against him. I supported the US and western embargo, the freezing of assets, and doing what we could to support the opposition. Gaddafi has to go.

But the same can be said of Kim Jong-Il in North Korea as well of Ahmadinejad in Iran, Mugabe in Zimbabwe, the leaders in China, and a host of other autocrats across the world. It would be terrific if they were swept aside by their people and democratic societies and governments replaced them. It wold also be wonderful if the US did all it could to encourage this–getting behind democracy and the people.

Yet the problem for the United States and Gaddafi is special–the U.S. has decided to use armed force to assist the opposition. This use of force raises three problems: 1) presidential authority to act; 2) what is distinct about Libya; and 3) what is the end game for the US?

Presidential Authority to Act

What constitutional authority does President Obama have to justify his deployment of American military force to enforce a no-fly zone in Libya? This is not clear.

The two sources of legal authority Obama can reference would be either the Commander-in-Chief clause of Article II of the Constitution, or the 1973 War Powers Act.

It is not clear how the Commander-in-Chief clause supports this action. The constitutional framers intended for Congress to be the dominant branch when it came to military and perhaps foreign affairs. Article I textually commits to Congress the power to declare war along with a host of other powers related to the military. Here Congress has not declared war and it is unlike after 9-11 when Congress did enact the Authorization to Use Military Force that gave Bush the authority (arguably) to deploy troops in Afghanistan. At least Bush had some legal authority to wage a war on terrorism, no matter how tenuous.

If Obama is relying on his Commander-in-Chief powers, it is hard to see how they come in. Libya has not attacked the US, it is not threatening vital interests, and it is not otherwise doing something that directly conflicts with American national security. Instead, to contend that the Commander-in-Chief clause gives Obama unilateral authority to deploy these troops is no different or better than Bush era assertions by John Yoo and others that the president had inherent constitutional authority to act. He does not.

There is no extra-constitutional authority for presidents to act. I discuss this issue in two articles. One is “ Democracy on Trial: Terrorism, Crime, and National Security Policy in a Post 9-11 World” that came out in Golden Gate Law Review and is located at http://works.bepress.com/david_schultz/15/ . The other is a piece entitled “Don’t Know Much About History: Constitutional Text, Practice, and Presidential Power,” http://works.bepress.com/david_schultz/11/ . This is a forthcoming piece is the University of St. Thomas Journal of Law and Public Policy.

Disputes over presidential power to deploy troops were supposedly addressed by the War Powers Act in 1973. It placed limits on presidential power to deploy troops for limited purposes, subject to consultation with and notification to Congress that the Act was being invoked. Here again Obama did not invoke the Act, although he does seem to reference it in terms of reporting to Congress. Had he actually invoked the Act, it might have provided clear support for his actions.

What Obama does seem to be invoking is Security Council Resolution 1973 that calls upon member states to enforce the no-fly zone. (Here is a link to his statement http://www.whitehouse.gov/the-press-office/2011/03/21/letter-president-regarding-commencement-operations-libya ) However, UN resolutions are not self-executing in the US. They cannot create presidential constitutional authority when none already existed. The president still needs to get constitutional authority. Acting as he did seemed similar to what Bush did when he sought UN support to invade Iraq in search of the non-existent WMD.

What should Obama have done? For what seemed like two weeks he dithered over what to do as the rebels advanced and then were beaten back. He should have been consulting with Congress, getting their support to act if the UN authorized action, or he could have clearly invoked the War Powers Resolution. But in any case, he did nothing and then perhaps acted as Bush would–relying on some vague inherent presidential powers.

Overall, it is possible Obama had legal justification to act, it is just not clear what it is.

What is distinct about Libya?

The second problem is what is distinct about Libya? Assume for now that Obama has the constitutional authority to act. Why Libya and why not Kim Jong-Il in North Korea, Ahmadinejad in Iran or Mugabe in Zimbabwe? Perhaps one can argue that resolution 1973 makes the difference. Specifically, world opinion and international law provide legal authority to act here and that is the difference. This may be a good legal argument, but what about the real politick argument for the US?

Libya is less of a threat to the US than Iran and Korea. From a strategic point of view it is hard to justify intervention. Korea and Zimbabwe are equally as brutal regimes. Why not them? Perhaps the difference here is that there is a popular movement to oust him and that is the reason why we are acting? Maybe the issue is about prospects of success in ousting him? All of these are possible answers yet I have yet to see a reason or argument that principally distinguishes Libya from acting in the other countries. Such a failure to clarify is what led Bush into Iraq and why the US is viewed as a hypocrite when it comes to us supporting or placating some repressive regimes, including in the Arab world. Why for example, did we not act in Bahrain?

What is the End game?

The final troubling issue is the end game for Obama? What are our goals and what are we trying to accomplish? If it is simply to enforce the no-fly zone that already seems to have been secured. Do we now walk away or does that now require a constant presence? Is it to prevent Gaddafi from killing and abusing his people? If so then what more does it require? It is to take Gaddafi out? Military action in the last two days seem to suggest the later two options are possible goals?

It is just not clear what the end game is and what we hope to achieve. Given comments by SOS Clinton and Obama in the last week or so, ousting Gaddafi seems the real objective but there is nothing in Resolution 1973, in the power of the presidency, or in any statement by Obama that provides a clear definition of what our objectives are. For those of us growing up during Vietnam one of the major lessons was that there must be clear objectives surrounding US military action, and that seems absent here.

I would like Gaddafi out. I thought Obama waited too late to act. He needed to line up congressional support sooner when the Libyan opposition was stronger. He needed to show how the US could stand up for Arab people and not their dictators. He had a chance to take decisive action but he dithered. He waited so late that is probably costing more lives. That is the real tragedy of human suffering. But the other tragedy is constitutional and political–he has failed to show by what legal authority he is acting, why Libya, and what his end game is. All of this raises difficult questions for Obama and the United States.

A Note on Pawlenty


No surprise that Pawlenty is forming a presidential exploratory committee. We have known all along he wants to run for president. He needs to run because he has no other prospects for what to do.
But creating the committee still does not solve two fundamental problems Pawlenty has. First he has no narrative or voice that distinguishes him from all the other GOP candidates who may decide to run for president. He has failed so far to make the case for himself.

Second, Pawlenty seems to be running against everything. He is running against Obama, against taxes, and against federal health care. He tells us all the things he is against and will not do but he has failed to state what he will do as president. It is as if he is running against and not for the presidency. If he hates the government so much why does he want to be president? I am perplexed.

There is a reason he is so far down in the polls. He has no identity to call his own. After neatly two years unofficially running he is behind Michele Bachmann who has been an undeclared presidential candidate for about three months. He needs to catch fire quickly and hope for a good Iowa bounce. So far there is no indication that it will happen.