ROLE IN EXERCISE: You are the White House counsel. EXERCISE: In the spring of 2011, President Obama committed United States troops to the NATO military air operation in Libya. If the actions involving United States support rose to the level of "hostilities" against Libya, the President was required under the War Powers Resolution to limit American participation or get the permission of Congress to continue such a mission. Instead, the President chose to interpret United States participation in a way that did not rise to the level of "hostilities", adopting the view of some of his advisors. See C. Savage, 2 Top Lawyers Lose Argument On War Power, N.Y. Times, June 18, 2011, at A1, col. 2. Somalia, a country in civil war since 1991, has been a "hot-spot" of instability monitored by other countries for a long time. Mogadishu, the capital, has been the subject of numerous incursions since that time. Somali pirates have hijacked numerous ships and kidnapped their occupants in the waters off of their country. Some of the pirates have raided nearby African nations, illustrated by two raids on neighboring Kenyan resorts. The coastline along Somalia is considered by the International Maritime Bureau to be some of the most dangerous coastline in the world. To stop the lawlessness, the President intends to provide monetary aid and troops. The President would like to organize a coalition of African nations to help stop the lawlessness. The troops would be used to train others to maintain order, to protect against kidnapping, to help those kidnapped, and to protect American travel on the seas off of Somalia. Drones and air assistance would be provided as well. Any military personnel would be instructed that they were there to act as peacekeepers, and to fire only as a defensive maneuver. An air strike would occur only to protect civilians on the ground, such as in Libya. The President has consulted with his advisors about the constitutionality of such actions. Several of the advisors have argued that the aggregate use of the armed forces, as well as the air strikes in particular, would violate the War Powers Resolution because they constituted "hostilities," triggering the Resolution. Others argued that the United States' role did not rise to "hostilities" under the War Powers Resolution. [44/45]Another group argued that the War Powers Resolution did not have a constitutional basis because it did not and could not spell out the dynamic boundary between the Congress and the Executive for protecting the United States.

Task: As the White House counsel, the President seeks your opinion about the scope of permissible constitutional action in light of the War Powers Resolution. While presidents have generally ignored the War Powers Resolution since its enactment, this President would like to propose a construction of the word "hostilities" that would clarify the line drawn by Congress and strengthen the legislative-executive interdependence dictated by the Constitution. This construction would be similar to a signing statement, which is a written comment on a law by a President at the time a law is signed. The comment often describes the President's interpretation of how the law should be interpreted and enforced. These signing statements have become very popular in the past several presidencies, but date back to Presidents James Monroe, Andrew Jackson and Ulysses S. Grant. The President would like the definition to exclude terrorism situations but not action promoting stability in a region of the world on the premise that a single unstable country can threaten regional peace.