Several House members — including America’s nonviolent Tom Zarek, Dennis Kucinich — will sue President Obama, to enjoin the ongoing fighting in Libya.
I hope I don’t have to tell you that this is going nowhere. The form of the law almost doesn’t matter, because the Court will simply punt based on the political question doctrine, or something similar. (They’ve done it before, when the ACLU attempted to enjoin the bombing of Cambodia.) And, if you think a federal court is actually going to stop a war, you’re crazy. They have, but they’ve always been reversed.
To the extent the law does matter, the War Powers Act necessarily poses a conflict between the Congress’ ability to “declare war,” Art. I, § 8, and the President’s commander-in-chief powers. But Congress’ war power is not implicated in this case, because what’s happening in Libya is not a “war” by any stretch of the imagination. Whether at the Founding or today, by “war” we have always meant a declared action, not an expenditure of military resources that, by virtue of the advance of technology, does not even implicate American lives. As the White House put it, “U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve U.S. ground troops.”
No-one has ever suggested that the President must seek Congressional approval to engage the American military, but not American lives. The WPA’s legislative history even speaks in terms of boots-on-the-ground — not resources, generally. Per H. Rept. 93-287, the reporting and ratification requirement applies “where there is reasonable expectation that American military personnel will be subject to hostile fire.”
Executive restraint is clearly a cause-of-the-moment for the right; it’s not something they actually care about, or actually exercise, when given the chance. Unsurprising, then, that they’re wrong here too.