Abstract

http://ssrn.com/abstract=2061835
 


 



Constitutionality of U.S. Participation in the United Nations-Authorized War in Libya


Jordan J. Paust


University of Houston Law Center

May 17, 2012

26 Emory International Law Review 43 (2012)
U of Houston Law Center No. 2012-A-10

Abstract:     
This article addresses the constitutionality of President Obama’s use of armed force in Libya in 2011. Although the Administration’s primary focus on the word “hostilities” in the War Powers Resolution (WPR) is unconvincing and there does not appear to be a new and significantly inhibiting Obama doctrine regarding presidential use of armed force abroad, the President had independent constitutional authority to authorize U.S. military forces to participate in U.N. measures involving the use of armed force in Libya and what clearly was an international armed conflict under international law. Such independent constitutional authority is outside the reach of Section 2(c) of the WPR and, therefore, is not subject to the WPR’s limitations. Even if it had applied, the WPR provides two express exceptions that are relevant: (1) that relating to the President’s independent constitutional authority, and (2) that relating to the provisions of existing treaties and, therefore, to relevant provisions of the United Nations Charter and, as an authoritative outcome of the treaty process, the U.N. Security Council authorization to use military force in Libya. The two exceptions are related in the sense that the President has independent constitutional authority as the Executive to execute laws and has the concomitant duty and authority faithfully to execute the laws, which include treaties of the United States.

Number of Pages in PDF File: 26

Keywords: Charming Betsy, Commander in Chief, Congress, Constitution, Executive Power, Faithful Execution Power, hostilities, Libya, NATO, Obama, President, Qaddafi, Security Council Resolution, self-defense, treaty, U.N. Charter, War, War Power, War Powers Resolution

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Date posted: May 17, 2012 ; Last revised: November 17, 2013

Suggested Citation

Paust, Jordan J., Constitutionality of U.S. Participation in the United Nations-Authorized War in Libya (May 17, 2012). 26 Emory International Law Review 43 (2012) ; U of Houston Law Center No. 2012-A-10. Available at SSRN: http://ssrn.com/abstract=2061835

Contact Information

Jordan J. Paust (Contact Author)
University of Houston Law Center ( email )
100 Law Center
Suite 230 BLB
Houston, TX 77204-6054
United States
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