In my last two posts, I discussed some of the legal and practical issues raised by the U.S. intervention in Libya, including the issue of whether the Obama Administration violated the War Powers Resolution by declining to seek congressional approval for participation in the conflict. Although there is room for debate, I concluded that the Administration probably did violate the Resolution insofar as the statutory meaning of “hostilities” aligns with the word’s colloquial meaning. But the question of meaning probably depends on more than text alone. As with most other questions of statutory interpretation, we should also look to precedent as an interpretive guide. My purpose in this post is to identify some relevant precedent and discuss how it might affect the analysis.

To start, it is worth noting that there is no judicial precedent. Because of justiciability hurdles and the federal judiciary’s longstanding aversion to deciding questions concerning foreign affairs and the legality of international conflict, federal courts have consistently dismissed actions under the War Powers Resolution without reaching the merits. In fact, just three weeks ago, a federal district court dismissed a lawsuit by Representative Dennis Kucinich for precisely this reason. Representative Kucinich had claimed that the President’s introduction of U.S. forces into Libya violated the War Powers Resolution, but the court dismissed for lack of standing.

There is, however, relevant precedent from the Executive Branch in the form of two opinions from the Justice Department’s Office of Legal Counsel. The first is a 1980 opinion by Assistant Attorney General John M. Harmon, entitled “Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization.” In examining the meaning of the word “hostilities,” the Harmon Opinion cited as instructive a House of Representatives Report stating that the word “hostilities” in the War Powers Resolution “was substituted for the phrase ‘armed conflict’ . . . because it was considered to be somewhat broader in scope. In addition to a situation in which fighting actually has begun, ‘hostilities’ also encompasses a state of confrontation in which no shots have been fired but where there is a clear and present danger of armed conflict.” The Harmon Opinion also cited a letter from the Departments of State and Defense explaining that the term “hostilities” includes “a situation in which units of the U.S. armed forces are actively engaged in exchanges of fire with opposing units of hostile forces,” but does not “necessarily encompass[] irregular or infrequent violence which may occur in a particular area.” The Opinion concluded that “the term ‘hostilities’ should not be read necessarily to include sporadic military or paramilitary attacks on our armed forces abroad.”

With the Harmon Opinion in mind, stop for a moment to consider how the law circa 1980 would have viewed the Libya intervention: If my last post is correct, the ordinary meaning of “hostilities” encompassed the conflict. Additionally, the legislative history seems to corroborate the text and suggest that Congress would have intended the War Powers Resolution to apply. If “hostilities” “encompasses a state of confrontation in which no shots have been fired but where there is a clear and present danger of armed conflict,” then surely the term must also encompass the U.S. bombing of Libya with manned and unmanned aircraft, and the U.S. provision of military support to NATO allies. And the Harmon Opinion’s partial reliance on the legislative history shows an Executive approach to war powers that aligned with the Resolution’s text and intent. Thus, at least as recently as the early 1980s, the law would have framed the Libya intervention as a “hostility.”

The law lost clarity, however, with the second relevant Executive precedent–a 1994 opinion by Assistant Attorney General Walter Dellinger, entitled “Deployment of United States Armed Forces Into Haiti.” OLC issued the opinion in response to a request from President Clinton for an analysis on the lawfulness of a planned deployment of U.S. forces into Haiti to oust Raoul Cedras from power and restore the democratic government of Jean-Bertrand Aristide. Concluding that the deployment would be consistent with the Resolution even without congressional authorization, the Dellinger Opinion explained that the Resolution’s “overriding interest was to prevent the United States from being engaged, without express congressional authorization, in major, prolonged conflicts such as the wars in Vietnam and Korea, rather than to prohibit the President from using or threatening to use troops to achieve important diplomatic objectives where the risk of sustained military conflict was negligible.” Notably, the Opinion cited no authority for this view.

With the Dellinger Opinion, it was no longer clear whether the War Powers Resolution applied to conflicts such as Libya. Given the Opinion’s suggestion that the Resolution’s overriding interest is simply in preventing unauthorized U.S. involvement in “major, prolonged conflicts,” the effective reach of the Resolution narrowed significantly. Moreover, there was no Executive analog to the doctrine of stare decisis to require the President to adhere to the decades-old Harmon Opinion.

So why does this matter? I think the OLC opinions are a microcosmic reflection of the steady march toward increasingly expansive presidential war powers–a march that has been powered by the Executive and that continues today. President Obama’s introduction of U.S. forces into Libya probably violates the text and purpose of the War Powers Resolution. The President’s action, however, aligns quite well with the practice of other recent presidents, including President Clinton with respect to Haiti and President George W. Bush with respect to the war on terrorism.