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

26 Pages Posted: 17 May 2012 Last revised: 17 Nov 2013

Jordan J. Paust

University of Houston Law Center

Date Written: May 17, 2012

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.

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

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: https://ssrn.com/abstract=2061835

Jordan J. Paust (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States

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