A while back, I argued that because the War Powers Resolution doesn’t treat anything less than a ground war as a war, Obama’s handling of Libya is, whatever else it may be, constitutional. I still think that’s true: the legislative history plainly contemplates restricting only the President’s right to start a ground war, and the text of the statute speaks in terms of American “forces.” A missile isn’t a “force”; so this isn’t legally a “war.”
This reading of the WPR doesn’t mean that Libya isn’t a “war” within the common parlance, or that a missile strike on American soil wouldn’t be the start of a “war.” It just means that, for the purposes of the statute, “war” becomes a term of art with a specific legal meaning.
Reading the WPR in this limited way might make it an artifact of its time. The kind of power-projection we undertake today, and the strategy implicated in Libya, is of a decidedly post-Cold War vintage. In the Cold War, we worried about limiting the use of nuclear weapons (which is provided for separately), and the unilateral commencement of a ground war (covered by the WPR). Missile- and drone-strikes on non-state actors, or for the purposes of disrupting the same, are new inventions, unique to the war on terror; plainly not something the drafters of the WPR would have considered important; and so, remain unregulated.
Maybe that’s not the way it should be. Unilateral missile- and drone-strikes are quite capable of starting an all-out war, ultimately requiring the commitment of ground forces, and endangering American lives. That fear isn’t present in Libya, so “as-applied,” this limitation to the WPR makes sense. But if Congress’ goal was to restrain the President’s ability to start, on his own say-so, an all-out shooting war, it doesn’t follow that the President can order strikes on any target, on his own authority. The WPR should, if it is to have any meaning, prevent the President from ordering missile strikes on France, say, or Russia, as both countries could (and would) retaliate, leading to an all-out war that couldn’t help but endanger American lives.
What the WPR should do, then, is to speak in terms of probabilities. It already does, to a certain extent. As written, the resolution asks the President to submit to report & review where “United States Armed Forces are introduced” “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” 33 U.S.C. § 1543(a)(1). To close the enforcement gap, all that’s needed is a little more generality. The WPR should regulate situations where “United States military power is expended” in furtherance of “hostilities, or in situations where involvement in hostilities is a natural, intended, or probable result.”
But as of now, it doesn’t, meaning President Obama’s actions remain on the level. Technically.