The University of New Hampshire Law Review


[Excerpt] “President Barack Obama triggered a War Powers Resolution (WPR) controversy with his military response to the anti-government rebellion and civil war in Libya in 2011. Members of Congress seized upon the WPR, questioning whether the Obama administration had complied with the WPR’s requirements when the United States launched the initial Libyan Operation Odyssey Dawn (OOD) and subsequently participated in the North Atlantic Treaty Organization (NATO) Operation Unified Protector (OUP). Many legislators charged that President Obama had violated the WPR. Concerns centered on such issues as presidential reliance on the United Nations (U.N.) Security Council—rather than Congress—for authorization to act, the WPR’s relevance to what some perceived to be humanitarian missions, our nation’s role in a larger NATO operation, the Obama administration’s definition of “hostilities” under the WPR, and the expiration of the WPR’s sixty-day clock (requiring the termination of military involvement). As debate raged about these and other matters, the WPR’s consultation provisions failed to attract serious congressional scrutiny.

Consultation, however, is at the WPR’s core and the prerequisite for the law’s stated goal that military ventures be based on the “collective judgment” of both Congress and the President. Thus, this Article concentrates on the subject of consultation and its glaring absence from the congressional conversation during the Libya crisis. After providing background on the WPR generally, the consultation requirement more specifically, and the U.S. response to the violence in Libya during the Libyan Revolution, I examine President Obama’s disregard for the consultation mandate’s letter and spirit. I then explore Congress’s muted response to the administration’s consultation violations, analyzing why the administration’s non-compliance did not spark greater congressional outrage. The congressional reaction to President Obama’s initial failure to consult on U.S. policy in Syria in August 2013, I also show, conforms to the analysis here. Finally, I consider what this study suggests for the future of the WPR’s consultation obligation. This Article hence highlights a specific WPR topic—consultation—that heretofore has received neither dedicated nor significant scholarly attention.”

Repository Citation

Eileen Burgin, Where’s the Consultation? The War Powers Resolution and Libya, 12 U.N.H. L. REV. 175 (2014), available at http://scholars.unh.edu/unh_lr/vol12/iss2/4