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The Warmaking Power, The Constitution And The War Powers Act

Balkinization provides a copy of the 1980 Office of Legal Counsel Opinion (PDF) on the constitutionality of the War Powers Act. Jack Balkin notes this passage:

We agree that the term "hostilities" should not be read necessarily to include sporadic military or paramilitary attacks on our armed forces stationed abroad.[. . . W]e also believe that as a general matter the presence of our armed forces in a foreign country whose government comes under attack by "guerrilla" operations would not trigger the reporting provisions of the War Powers Resolution unless our armed forces were assigned to "command, coordinate, participate in the movement of, or accompany" the forces of the host government in operations against such guerrilla operations. 16 50 U.S.C. § 1547(c).

[. . .] The structure and thrust of those provisions is the "introduction" of our armed forces into such a situation and not the fact that those forces may be engaged in hostilities. It seems fair to read "introduction" to require an active decision to place forces in a hostile situation rather than their simply acting in self-defense.

(Emphasis supplied.) Obviously, it was the Obama Administration that introduced US military power into Libya. This was no act of self defense. It is beyond debate, in my view, that the 1980 OLC opinion conflicts with the Obama Administration argument that the United States is not engaged in "hostilities" covered by the WPA. More . . .

Also, at Balkinization, Sandy Levinson writes a post titled Life In A Constitutional Dictatorship:

It is now crystal clear that Obama does not represent a true repudiation of the Bush Administration, but, rather, a (somewhat) kindler and gentler version of its claims vis-a-vis presidential power and what is defined by the White House as "national security." James Fallows, in an excellent comment on the remarkable assertion that the War Powers Act is irrelevant because Libya doesn't constitute the kind of "hostilities" adverted to, writes that "[t]he central concern, and the major threat to our politics, is that once again we are going to war essentially on one person's say-so." He is correct, even if one grants full credit for Obama's having sought out acquiescent lawyers who turn out, however, not to be employed by the Office of Legal Counsel or the Department of Defense.

Levinson's title and focus on the issue of "one person's say-so" with regard to taking