April 24, 1989 | Backgrounder on National Security and Defense
701 April 24, 1989 A PRESIDENTKL SI'RATEKY FOR REPEALING THE WM PO- RESOLUTION INTRODU CTION The 1973 War Powers Resolution typifies what is now widely recognized as a trend by Congress toward aggrandizin to itself the powers that the Constitution gives to the executive branch. Indeed, every president since the Resolution was passed has con s idered it to be unconstitutional. Said George Bush in an August 25,1987, speech to the American Legion National Convention 9 What kind of wacky world is this where the President is taken to court every time he moves our troops around in the national inter est? Sometimes a President must take risks for peace, and he doesn't need to be blocked every step of the way.
Understandable only as a product of a unique period in the nation's history the War Powers Resolution long ago proved itself useless for its inte nded purpose and extremely harmful to national defense in its actual.effect; It should be repealed before it causes any more damage to United States security or to the constitutional framework so carefully crafted by the Founders two centuries ago.
The Wa r Powers Resolution was passed over the veto of Richard Nixon who was then gravely weakened politically by Watergate, and whose final months in office marked the lowest ebb of presidential political power 1 See Gordon S. Jones and John A. Marhi, e The Imp e rial Conps: clisis in the Separation of Powers (Washington, D.C The Heritage FoundatiodClarernont Institute, 1989) and L. Gordon Crovitz and Jeremy A. Rabkin, e The Feneted Presidency: Legal Constraints on the fiecutbe Bmnch (Washington, D.C American Ente r prise Institute for Public Policy Research, 1989 perhaps inthe nations history. Although it was defended at the time as a way to do something about the undeclared Vietnam War, the truth is that Congress had the power under the Constitution to stop that wa r at any time by refusing to appropriate funds No unconstitutional restraints on the President were required Counter to the Constitution. The War Powers Resolution is based on the assumption, counter to constitutional text and U.S. tradition, that the Pres ident may not use force without congressional approval unless the country is under attack. Such an assumption belies the fact that U.S presidents since John Adams unilaterally have used force to achieve foreign policy objectives some 137 times.
The main pr ovisions of the War Powers Resolution require the President to submit a written justification to Congress within.48 hours of introducing armed forces into hostilities or into iIliminent hostilities. The President must then bring the troops home within 60 ( or in some cases, 90) days unless Congress acts either to declare war or to give the.President an extension of time. Even before 60 days or at any time afterward, however, Congresscan require the President to withdraw forces simply by passinga resolution. that does not require presidential approval I I Tragic Result. This restraint on the President ha had obvious and often tragic results. For one thing, Presidents always must co-ider that any military operation might have to end prematurely ifrongress mere l y failsto act to approve it.This limits operations that Presidents otherwise would undertake. For another thing; the War Powers -Resolution unwisely restricts military operations already underway. Ronald Reagans 1983 deployment of Marines to Beirut, Leban o n, for example, was restricte.d by the War Powers Resolution. The Marines mission was defined by Congresss ability to impose a 60-day limit under the resolution. The result: a necessarily limited. show of force that turned to tragedy when the Marine barra c ks was bombed and 220 American servicemen lost their lives Under the Constitution, the executive and legislative branches. are,.equal but they do not have the same powers. The Constitution.assigned particular tasks to each branch based on its respective s t ructure and purpose. Congress was supposed to be the deliberative body whose diverse and numerous members were to weigh policies and forge compromises over time. The unitary executive, in contrast, was meant to be the energetic branch that, as Federalist P aper 70 puts it, would be marked by decision, activity, secrecy and dispatch I Yet Congress has now so constrained the executive branch through such laws and regulations as the War Powers Resolution that neither branch performs its assigned role. And by c l aiming presidential powers as its own Congress has replaced decision with vacillation, action with inaction, secrecy with leaks, and dispatch with 1assitude.The effect is not simply a transfer of power to Congress from the executive, but an actual paralys i s of the government 2 Taking the Lead. Congress should be encouraged to recognize itimistake and repeal the War Powers Resolution.The Resolution not only hinders the President, but opens Congress to ridicule for trying to enforce an unworkable, unconstitu t ional provision. George Bush must take the lead in explaining to Congress how relations between the two branches-would..work in the absence of the War Powers Resolution. The principle must be that Congress must have the ability to fulfill its deliberative - functions and the President must be free to act to protect U.S. security. .I The Bush Administration should'pursue a twin-track policy to replace the War Powers Resolution statutory approach with a politica1,arrangement that recognizes the special constit u tional duties and powers of the respective branches. In pursuing the first track of his strategy, the President should use Specifically he should: t the bully pulpit to build public support for repeal of the'resolution Explain to the American public what is at stake;in revising the War.
Powers Resolution. He must explain that the War Powers Resolution can put the lives of American troops at risk because even.congressiona1 inaction can require the premature removal of forces.The President should cite the Be irut tragedy as partly caused by the artificial restrictions ofthe War Powers 7 Resolution 6 Order the .Secretary of Defense in conjunction gth the.White House Counsel, to prepare a comprehensive study of thciristances in which the War Powers Resolution a c tually has or potentially could endanger U.S. lives and national security interests Include repeal of the War Powers Resolution as part of a larger strategy to protect executive branch powers and discretion. The public must understand that the very functi o ning of the federal government is threatened when separation of powers is put out of kilter 2 Eugene Rostow has written that the War Powers Resolution "repudiates that history root and branch, and seeks to substitute parliamentary government for the tripa rtite Constitution we have so painfully forged."
Eugene Rostow Great Cases Make Bad Law: The War Powers Act 50 Twas Law Review 833,843 (1972 3 As part of the second track of his strategy to repeal the War Powers Resolution, the President should lobby Congr ess for repeal of the resolution In particular, he should Explain to members of Congress that the War Powers Resolution reduces their ability to perform the serious tasks assigned to Congress by the Constitution. Example: Congress spent many hours debatin g whether Reagan should have invoked the War Powers Resolution during the 1987 mission to -i protect free shipping in the Persian Gulf. Congress spent very little time debating the merits of the policy itself Express the willingness to consider alternative s to the War Powers Resolution that recognize a role for Congress in defending the.nationJ'he President, for example, could offer informal discussions with leading members of Congress as an alternative to today's sterile debate.about the legality of requir i ng formal consultations Acknowledge the key role that Congress' plays in its unique power I over appropriations. If Congress flatly refuses to vote for funds for a program or policy, there is very little the President cando about it Recog~ze that, while t he Founders intended that the President should have the discretion to act when necessary, the Founders also intended that Congress would be the body with the.specia1. genius?.for deliberation.
Bush should announce that he will respect the conclusions that Congress reaches after due deliberation. Yet if Congress fails to vote unambiguously to stop an action, the President must retain the inherent power to defend the nation as he thinks best ANALYSIS OF THE WAR POWERS RESOLUTION The War Powers Resolution is a product-of the fevered politics of its time.
As Congress debated the War Powers Resolution in July 1973, the Watergate investigation was in full swing, and America was losing thewar in ViEtnam Many Americans, and not just those of draft age, were questio ning the leading U.S. role in the world. They believed that American belligerence, not Soviet imperialism, was the cause of international tensions The Political Background Two World Wars and the Korean War had intervened since George Washington's Farewell Address, but the festering war in Southeast Asia was something new.The resolve to win militarily was somehow lacking in both officials in Washington and demonstrators on the campuses. It would be years 4 before the holocaust in Cambodia and the agonies of the Boat People reminded Americans of the noble purpose of the war.
The task for many in the early 1970s was to find a scapegoat for the Vietnam War. The war had been supervised by three Presidents with the encouraging appropriations of Congress for more than twenty years. Yet for domestic political reasons, the easiest target became Richard Nixon who ironically, had ended the war The Watergate Floodgate Watergate, became the golden opportunity for Nixonls.opponentsdoi aggrandize their own power at the ex pense of a badly weakened President.
The key to understanding the War Powers Resolution-is30 recall that it was passed over Nixons veto on November 7,-1973,-just a few days after the so-called Saturday Night Massacre of October 20, when Nixon fired special prosecutor ArchibaldLCox. The resolution became law-at a time when Nixons political credibility had plummeted to near zero.
Since 1973, Congress has created a vast progeny of the War Powers Resolution. Such constraints on presidential powers over foreign policy include the Hughes-Ryan Amendment of 1974, the Clark Amendment of 1976, the Foreign Intelligence Surveillance Act. ofi.19789 and,five Boland Amendments between 1982 and 19
85. Some 23 congressional committees and 84 subcommittees now oversee executive branch officials in their conduct of foreign policy. Former top CIA official Robert Gateswrites that even the covert intelli ence agencies are now more resp onsive to Congress than to the President ff WHAT THE WAR POWERS RESOLUTION SAYS s There are more than 3,000 pages of congressional statutes regulating foreign relations. The Wars Powers Resolution consists of tersections covering about five of these pages . Yet five of the ten sections are constitutionally flawed. The provisions of the Resolution that have beguiled a generation of constitutional scholars are Sections 2,3,4,5, and 8 Section 2: Purpose and Policy Section 2 (a) states that the purpose of the R e solution is to fulfill the intent of the framers of the Constitution that the collective judgment of 3 Robert M. Gates, The CIA and American Foreign Policy, Foreign Afluits, Winter 1987/88, pp. 215,225 5 both the Congress and the President will apply to t h e introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances Constitutionally Suspect. The Framers of the Constitution never used the phrase collectiv e judgment The entire structure of the Constitution gives separate powers and functions to the legislative and executive branches.
Congress is the branch best suited to deliberation; the President as Commander in Chief must be free to act with dispatch. Co llective judgment is thus constitutionally suspect:A President must be free to act unilaterally to defend the nation I Several of the terms in section 2 (a) are ambiguous to the..point.of rendering the act useless if not unconstitutional. Does the term ar m ed forces, for example, include such tactical units as anti-terrorism squads or a small number of personnel to rescue hostages?.:Arguably;. no, because unlike the traditional United States Armed Forces, these forces are not intended I or equipped to condu c t sustained combat with foreign forces Ambiguous Hostilities. As Abraham Sofaer, the legal adviser of.the State I Department, has said, Action by an anti-terrorist unit constitutes a use of force that is more analogous to law enforcement activity by polic e in thew domestic context than it is to the hostilities between states contemplated by the War Powers Re~olution Sofaer also has pointed-out that many uses of force by the U.S. are not covered by the terms of the War Powers Resolution Examples: Military d eployment including the movement of warships through foreign territorial waters, the deployment of security personnel such as: 1 embassy guards, and transits of combat aircraft through foreign airspace.
A President, moreover, can engage the country in host ilities without invoking the armed forces in any way envisioned bythe War. Powers ,6 Resolution. Example: A President can launch intercontinental missiles without deploying troops, yet such a move would clearly be.an act of war. It seems unlikely that Con g ress intendedto limit anexpedition of an anti-terrorist squad yet acknowledges that it cannot have a joint finger on the button controlling nuclear weapons I 7 The term hostilities is not defined by either the-Constitution or the War Powers Resolution. Ho s tilities presumably includes dispatching troops to defend Europe. But does hostilities include sending a strike force to spend a few days liberating a Caribbean island? To liberate an occupied embassy To liberate American hostages overseas I 4 Statement o f Abraham D. Sofaer, Legal Adviser of the Department of State, to the Subcommittee on Arms Control, International Security and Science of the Committee on Foreign Affairs of the House of Representatives, April 29,1986.
Far from reflecting the Constitution, then, the War Powers Resolution purports precisely to define terms that are inherently ambiguous, and for that reason, left by the Founders to the discretion of the political branches to apply in cases as they arise Asserting One Branch Supremacy. Sectio n 2 (b) of the War Powers Resolution invokes the clause of Article I, Section 8 of the Constitution that gives Congress the power to make all laws which shall be necessary and proper to just
the assumption of the War Powers .Resolution that Congress has t he power to define and limit the powers not just of Congress but also of the executive branch.This ignores the fundamental tenet of constitutional law that no branch of government can unilaterally withdraw the constitutional powers of another branch. If P residents have. inherent. war powers under the Constitution, therefore, Congress cannot in effect amend the Constitution by enacting a resolution defining those powers i Y Section 2 (c) of the act purports to spec
the powers ofthe President to involvement in hostilities is indicated by the circumstances. The Presidents constitutional powers, the subsection says, are limited to: 1) a declaration.of war; 2) specific statutory authorization; or 3) a national emergency created by attack upon the U.S its terri tories or possessions, or its armed forces introduce forces into hostilities or into situationiwhere imminent i Ignoring History. This is far too narrow a view of presidential authority.
National emergency as defined here does not cover a-wide range of the uses of force that Presidents have ordered throughout history without congressional approval. It does not include, for example, rescuing American hostages overseas, protecting free shipping, sending war material to allies, or traditional displays of stre n gth to ward off potential adversaries. Presidents unilaterally have pursued all of these powers. 5 Even Senator William Fulbright, a significant .backer of the War.Powers Resolution and the chairman of the Senate.-FoTeign RelationsGommittee at the time un d erstood that this list was dangerously incomplete and that a President may find it absolutely essential to use the armed forces without or prior to congressional authorization. In his supplemental~viewsfol1owing the committee report on the War Powers Reso l ution, Fulbright proposed an alternative section that would recognize the power of .the President to respond to any act or situation that endangers the United States, its territories or possessions, or its citizens or nationals when the necessity to respo n d to such act or situation in his judgment constitutes a national emergency of such a nature as does not permit advance congressional 5 For a complete list of these cases, see L. Gordon Crovitz, Presidents Have a History of Unilateral Moves The Wall Stree t Journal, January Is, 1987, editorial page; reprinted as Appendix in Rotunda and Nowak, Treatise on Constitutional Law (St. Paul, Minnesota: West Publishing Co., 1988 7 authorization to employ such forces.6 This would have been an improvement but still wo uld have prohibited such important significant actions as aiding U.S. allies.
The War Powers Resolution errs in attempting to create a comprehensive list of potential national security contingencies. The Founders intentionally left out anymch list from the Constitution because they understood the impossibility of such a task Section 3: Consultation In practice, the requirement that the President consult? with .Congress before dispatching armed forces politically has been the most explosive provision. Polit i cal confrontation over this section in- recent years involved the raid on Libya, and sending Marines to Beirutand convoys to protect ships in the Persian Gulf r Section 3 specifies that in every possible iiistance the Presihent shall consult with Congress before introducing United States Armed Forces-into hostilities or into situations where imminent hvolvement in hostilities is 1 clearly indicated by the circumstances. In addition, the President must Jr consult regularly with Congress once armed forces ar e introduced until the forces are no longer engaged in hostilities or have. been removed from such situations Need for Secrecy. The most controversial aspect, of this section is thevery idea of Congress requiring consultation by the President; It is unclea r what consult means. Must congressional leaders simply be informed, or must Congress have some power to affect policy before it made? While there may be times when a consultation is possible.and.hvisab1e; at otherTtimes a President may consider it unwise. Example: Thesuccess of the Aprill4, 1986 raid in Libya would have been endangered by &y wide advanced knowledge.
The ability of a President unilaterally to pursue foreign policfand execute policy requires secrecy. Indeed, the Founders gave the.executive.b ranch special responsibilities in foreign affairs because a unitary executive has different qualities than a large legislature. In ascribing decision, activity secrecy, and dispatch to the executive branch in Federalist Paper 70 Alexander Hamilton wrote t h at these features will generally characterize the proceedings of one man in a much more eminent degree than the proceedings ,of any greater number; and in proportion as the number is increased, these qualities will be diminished 1 t 6 Supplemental Views o f J. W. Fulbright, War Powers Report Together with Supplemental Views, Senate Foreign Relations Committee, June 14,1973, p. 35 8 Consultation as Blackmail. The main effect of the consultation requirement of the War Powers Resolution has been to give congre s smen the opportunity to blackmail the President In several cases, congressmen have been consulted, and then threatened to go public with the information if the policy is pursued. Brit Hume, the former Capitol Hill reporter for ABC reported that Senator Jo s eph Biden, the Delaware Democrat, said that, when serving on the Intelligence Committee, he had twice threatened to go public harebrained. with covert action plans by the Reagan administration that were Consultation is no guarantee of agreement or coopera tion between the branches. Example: The Vietnam War was a product of policy making by three Presidents, together with continuing appropriations by Congress..
Section 4: The Reporting Requirement Section 4 requires that the President submit a,kitten report to Congress f within 48 hours of introducing U.S. forces under any of three circumstances 1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances; 2) into the territory, airspace, or water s of a foreign nation, while equipped for combat, except for deployments that relate solely to supply, replacement, repair, or training of such forces; or 3) in numbers which substantially enlarge-U.S..Armed Forces equipped for combat already located in a f oreign nation The confusions of other sections also afe present here. What can numbers which substantially enlarge armed forces mean? Arguably, for example sending a small force to liberate Grenada did not enlarge forces there because no forces were there before Informing Congress. But .in practice, reportsdo Congress after committing U.S. troops have not been as troublesome as.other.provisions of the War Powers Resolution. Indeed, Presidents have issued reports in cases where the War Powers Resolution doe s not necessarily require them Examples:..Gerald Ford issued reports to Congress about the evacuations from Southeast Asia and the S.S. Mayaguez incident. Jimmy Carterreported after the fact on the failed mission to rescue the U.S. hostages .from Iran. Ron a ld Reagan submitted reports on U.S. participation in the multinational forces in the Sinai and Lebanon, the deployment of US. aircraft relating to the war in Chad, deployment of the forces that liberated Grenada, U.S attacks on Libyan jets in the Gulf of S idra, and the U.S. bombing of Tripoli Yet Presidents have taken care to indicate that these reports are not being delivered in deference to the War Powers Resolution a concession that 7 Brit Hume, Mighty Mouth, The New Republic, September 1,1986, p. ul 9 w ould be inconsistent with the views of all Presidents since Nixon that the Resolution is unconstitutional. Presidents simply have deemed it good policy to make prompt and formal reports to Congress after significant foreign actions. As the branch of gover n ment charged with deliberation and on-going review of policy, the legislature must have reports on all features of foreign policy. Certainly the President has no compelling reason for secrecy once troops have been openly deployed. It is doubtful, therefor e , that the War Powers Resolution itself actually encourages Presidents to report. i Section 5: Congressional Action/lnaction Section 5 is in many ways the core of the War Powers Resolution:: It contains the most controversial provisions, including a legis lative veto that nearly all legal scholars agree was made patently unconstitutional by the Supreme Courts 1983 ruling in Immigration -and Naturalization Service v.
Chad3za. Section 5 provides that the President must terminate .the use of U.S forces within 60..daySafter the President has reported the cormiitment of forces, as requiredunder Section 4.There are only three exceptions that would allow continued deployment of forces, all but the most extreme-of which require action by Congress. Section 5(b) stip u lates that the President can continue his policy only if Congress: 1) has declared war or has enacted a specific authorization for such use of U.S. forces, 2) has extended by law the 60-day period, or 3) is physically unable to meet.asLa.result..of an arm e d attack upon the U.S The President also tan extend the 60-day period by an additional 30 days if he certifies to Congress in writing that unavoidable military necessity requires the additional time to bring about a prompt removal.of such.forces7 that is, to allow a safe retreat. Thus, unless Congress is physically prevented from meeting, the President must yield to Congresss action:--or to its inaction Logical Questions. This raises many serious constitutional and logical questions. For example, if the Pr e sident had the constitutional. power, to..send troops abroad in the first place, by what constitutional provision can Congress reverse that power simply by passing a law? The easiest position for Congress to take is noposition at all. Inaction comes natur ally to a body as .large and diverse as Congress.This tendency to inaction in Congress is precisely why the Founders gave the President broad unilateral powers toact in foreign affairs.
Section 5 of the War Powers Resolution has had tragic results. In 1983, for example, Reagan complained that this provision made a sensible policy in Lebanon impossible to pursue.The disastrous deaths of 220 U.S. Marines can be traced to the strategy force d on the executive branch by the knowledge that the military could have only 60 days to effect its peacekeeping function 10 The imposition of this inflexible and arbitrary deadline led to the decision to place so many Marines in one location as a show of s t rength Misdirected Debate. Section 5 of the Act also has caused great problems for the policy-making process. The recent debate on the U.S. policy of protecting free shipping in the Persian Gulf, for example, became almost entirely a debate about whether t he War Powers Resolution applied, not whether the Gulf strategy was good or bad In this way, the War Powers Resolution focuses attention on legal issues, not on the merits of using force in the particular situation. By imposing what appears to be a legal o bligation on the President, Section 5 of the War Powers Resolution threatens to become part of the trend by Congress to criminalize its policy differences with the President8 Finally, there is a provision of Section 5 that purports:to give Congress the po wer unilaterally to demand withdrawal of U.S. forces within 60 days.
Section 5 (c) says that forces shall be removkd by the President if the Congress so directs by concurrent resolution. When the Wartpowers i3 3 Resolution was adopted, this was one of many of the so-called legislative vetoes that were regularly written into legislation. 1n.Imrnijyatiion.and t Naturalization Service v. Chadha the Supreme Court in 1983 invalidated the legislative veto as a violation of the constitutional separation of powers . Yet Congress has not made any change to the War Powers Resolution.
Section 8 of the War Powers Resolution ignores the other sweeping sections of the act to .assert that fnothing in this joint resolution is intended to alter the constitutional authority o f the President3.A brief review of the text of the Constitution and its structure that defines the separation of powers as well as 200 years of history and court opinions shows that the protestations of innocence by Congress in Section 8 will not withstan d scrutiny PRESIDENTIAL POWER UNDER THE CONSTITUTION The Constitution is the fundamental source for the respective.powers-of the branches. Legislative powers under the Constitution are distributed in limited terms whereas the powers of the President are ex pressed expansively.
Congressional power is inherently limited by the first words of Article I Section 1, which provides that All legislative Powers herein granted shall be vested in a Congress of the United States Emphasis added In contrast Article 11, Se ction 1 begins, The executive Power shall be vested in a .
President of the United States. There is no parallel herein granted to restrict the Presidents powers as an executive 8 See L. Gordon Crovitz, The Crimmalization of Politics, in Jones and Marini, e op. cit pp. 239-2
67. See also Robert Bork, Foreword, in Crovitz and Rabkin, op. cit p. xi 11 In the foreign policy context, the missing herein granted makes the critical distinction between Congress and the President: The sovereignty necessary for any nation to pursue a policy of defense against other sovereigns must reside somewhere, and the Founders determined that in many cases it would reside in the President.
Some powers of sovereignty must as a practical matter reside in a single, unitary executi ve.This is especially true regarding the power to defend the nation from foreign dangers. Indeed, the need for a strong executive in a dangerous world was already clear by the late 18th century. The Founders thus created a system in which foreign policy w o uld be determined and executed largely by the executive branch. This system has passed the test of time. Changes in the technology of war and the more complex risks.facing the nation and its allies make this system of broad powers in the executive branch a ll the more necessary The Commander in Chief Power. After the general delegation of the executive powers the presidents most significant war power derives-from the Article 11, Section 2, designation of the President as Commander in Chief of the Army and N a vy of the United States and of the militia of the several States. This could have meant that the President would function only as a symbolic chief commander, the way European monarchs led the troopsonly in a ceremonial sense. Yet the dismal experience und e r the Articles of Confederation had taught the Founders that .the nationkould not be protected by a collection of commanders in chief The Presidents Commander in Chief power dwarfs Congresss power to declare war. The Constitutional Convention decided afte r some debate to alter the original delegation to Congress of the power to make. war James Madison and Elbridge Gerry argued for the change because it would leave the Executive the power to repel sudden attacks Inthe next speech-at the debate, Roger Sherma n noted that the change giving Congress only the power to declare war would give the President not just the power to defend against such a sudden invasion, but would give thepresident the power to commence war. The Founders thus opted to give the executive the power to engage the country in war, while Congress alone would havethe power to make the formal declaration of war CONGRESSIONAL POWER The foreign affairs powers delegated to Congress are less exhaustive.
Contrary to the argument made by many defender s of the War Powers Resolution, the power to declare war is not the greatest congressional war power. The ultimate congressional power in war-making, as in. so many other areas, is its sole power to appropriate funds 12 The power of the purse is defined b y the Article I, Section 9 requirement that No money shall be drawn from theTreasury, but in Consequence of Appropriations made by Law. This power cannot be overestimated. There is nothing in the Constitution, for example, that requires the existence of an intelligence agency. It is entirely within the power of Congress to choose not to fund intelligence agencies. Upon refusal, a President could do nothing but plead for Congress to change its mind Voting A Wars End. This power to refuse appropriations is th e declaration that a war has ended. Indeed, the end of the Vietnam War was presaged by Congress refusing after many years to appropriate adequate funding for a war. A similar refusal by Congress to fund the freedom fighters in Nicaragua led to a dismantlin g of the Contras as a significant military force Congress thus has the power under the Constitution to act by refusing to appropriate. Such a refusal to appropriate; howeverirequires a decision by Congress. It must decide to turn down requests from the Pre s ident for more funds. This in turn requires members of Congress to vote yes or noIon funding and to-be held accountable for their decisions. The ultimate war power is the power to fund or not to defund I SUPREME COURT CASES To the degree that the courts h a ve become involved in determining the extent of each branchs war power, they mainly have acknowledged that the President has the pre-eminent role. One important case even lihts the congressional power of the purse. When Congress has attempted to attach co n ditions to the spending of authorized funds instead of simply withholding appropriations, the courts have held that such conditions cannot be.used to usurp the constitutional authority of the President In US. v. Lovett in 1946, the Supreme Court .was face d with-.a congressional omnibus appropriation that included a condition that three particular executive-branch officials, suspected of subversive activities, would-bedenied their salaries.The Supreme Court ruled in part that this usurped the Presidents.pow er to hire and fire his own staff The leading Supreme Court case on the war power is themuch-cited US. v Curtiis- Wright Export Co. of 19
36. Franklin D. Roosevelt had issued a proclamation that no arms be sold by Americans to warring factions in Bolivia. While there was also a joint resolution by Congress establishing penalties for any violations, the Supreme Court upheld Roosevelt without taking into consideration the fact that Congress also had acted. Justice George Sutherland wrote for a 7-1 Court that the Constitution gives the executive branch supreme powers in foreign affairs. Not only is the federal power over external affairs in origin and essential character different from 13 that over internal affairs, but participation in the exercise of the pow er is significantly limited In this vast external realm, with its important complicated, delicate, and manifold problems, the President alone has the power to speak or listen as a representative of the nation.
Further, Justice Sutherland referred to the ve ry delicate, plenary, and exclusive power of the President as the sole organ of the federal government in the field of international relations -a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other government power, must be exercised in subordination to the applicable provisions of the Constitution Presidents Discretion. Using reasoning that would apply-equally, toithe War Powers Resolution, Sutherland wrote, It is quite apparent that if, in t h e maintenance of our international relations, embarrassment perhaps serious embarrassment is to be avoided and success for our aims achieved congressional legislation which is to be made effective through negotiation and inquiry within the-international f ield mdst often accord to the President \\ a degree of discretion.and freedom from statutory restriction which would not be admissible were domestic affairs alone involved Concludes Sutherland: This consideration, in connection with what we have already said on the subject, discloses the unwisdom,of requiring Congress in this field of governmentd power tolay dowh narrowly defined standards by which the President is to be governed The War Powers Resolution is an example of precisely this overreaching: It purpo r ts to narrowly define the ability of the President to deploy and commit troops overseas 9 I U.S. TRADITION In addition to the Constitution and court interpretations givingthe President extremely broad powers, the history of American foreignt.policy is-a h i story of presidential action. From the beginning of the Republic until 1970 Presidents ordered troops or significant levels of arms abroad- 199 times. In only five of these cases did Congress declare war. In 62 of the cases, Congress consented to the Pres i dents actions by specifically appropriating funds passing resolutions, or by the Senate having ratified a treaty that envisioned the action that the President took. In the remaining two-thirds of these cases 137 of 199 occasions -the President made war wi thout any authorization whatsoever by Congress. This directly contradicts the erroneous assumption 14 of the War Powers Resolution that its strictures against Presidential authority were merely codifying years of practice or constitutional design?
The foll owing examples show the extensive range of unilateral uses of force by the President, which undermine the War Powers Resolution notion that the President can act without Congress only in limited circumstances and then only for limited periods: i Jefferson , in 1801-1805, sent warships to the Mediterranean to sink Barbary pirate ships Monroe, in 1816-1818, ordered attacks on Spanish Florida Tyler, in 1844, sent forces to protect Texas from Mexico, anticipating Senate approval of a treaty of annexation that w a slater-rejected Buchanan, in 1856, ordered troops to land in Canton, China, to destroy forts after an attack on an unarmed ship Eearing the US. flag i McKinley, in 1900-1901, sent troops to China to protecthAmericans during the Boxer Rebellion r Theodore R oosevelt, in 1904, sent a squydron to Moroccan waters to free an American hostage and issued the ultirnatum,,fWe .want.either Perdicaris alive or Raisuli dead Taft in 1912, sent troops to Nicaragua to protect U.S. intkrests during a civil war Wilson in 19 1 8-1920, sent aid to the anti-Bolshevik forces at Archangel, Vladivostok, and the Murrnansk coast near Norway:in Russia; he also sent troops to Dalrnatia to quell fighting-between Italians and Serbs Coolidge, in 1926, sent troops to Nicaragua to put down a revolt by Sandino. Congress called this President Coolidges private.war$ but.took.no action Franklin Roosevelt, in 1940, delivered a flotilla of destroyers to Britain, and later ordered troops to occupy Iceland and Dutch Guiana despite congressional prohi b ition Truman, in 1946, sent warships to protect Turkey from the Soviet Union and later, without congressional approval, dispatched U.S. troops to counter the communist attack that began the Korean War 9 Crovitz, footnote 5, supm 15 Eisenhower, in 1958-196 0 , sent troops to Beirut and Cuba Kennedy, in 1962, quarantined Cuba during the missile crisis Johnson, in 1964, sent aid to the Congo and troops to the Dominican Republic I F Nixon, in 1970, sent Marines to Lebanon Carter, in 1980, tried to rescue the hos t ages in Iran Reagan liberated Grenada, attacked Libya, and deployed U.S. warships to protect shipping in the Persian Gulf REFORM PROPOSALS BY CONGRESS 5 i As a Southerner, I hope I will be understood when I say that if the War Powers Act had existed betwe e n 1860 and.1865; when Abraham:Lincoln-was President, the U.S. Capitol would be just up the road -in Richmond. So said Senator Sam Nunn, the Georgia Democrat and chairman-of the Armed Services Committee. He and others in Congress recognize that something m u st be done to change the War Powers Resolution. Several proposals have been introduced in recent years or are in the worksthat-wouldxhange or replace the War Powers Resolution. Despite Nunns historical comparison none of the congressional proposals would g o so.far as to returnito the pre-1973 level of Presidential discretion. Some of the proposals are more valuable than others, however, and are worth considering for their. strengths and weaknesses I I The Lawsuit Approach One proposed r,eform seeks to forc e the courts to decide..Early.lastgear Representative Peter DeFazio, the Oregon Democrat, proposed a bill containing a provision to confer legal standing.on members of Congress seeking to sue the President for non-compliance with the War. Powers Resolution . This might have solved the problem faced by Representative Mike Lowry, the Washington Democrat, and 109 other Democratic colleagues who had filed such a lawsuit against Reagan. The case was thrown out by the federal appeals court in Washington, D.C as mo o t after the Iran-Iraq ceasefire, but courts have traditionally denied the right of congressmen to sue the President in such cases. Courts reason that congressmen can simply pass legislation, rather than approaching the court to settle a political matter. I n fact, the DeFazio legislation might itself be unconstitutional. While Congress has the power to decide some questions of 16 court jurisdiction, it does not have the constitutional authority to dictate such a core judicial principle as who can sue whom f o r what The Permanent Consultative Group 7 A proposal made in spring 1988 would have reversed the one provision of the War Powers Resolution that nearly everyone agrees is unconstitutional Introduced in the Senate by Democrats Robert Byrd of West Virginia G eorge Mitchell of Maine, and Sam Nunn of Georgia, and Republican John Warner of Virginia, the bill would have revised the War Powers Resolution in three main ways First, the bill would have repealed the legislative veto provision in the law that requires a utomatic troop withdrawal if Congress simply fails to vote to approve a deployment. Instead; troops would be allowed to remain unless Congress voted to recall them.-This would have recognized. that congressional failure to act must not have the same impac t as Congresss voting and taking responsibility for its actions Second, the bill proposed creation of an eighteen-member congressional group empowered to invoke. the War Powers Resolution, thus triggering all the remaining provisions of the Resolution. Thi s , group also would have the power to introduce a congressional resolution. td..eitheiauthodze continued deployment or require the withdrawal of forces. This of course, would continue to burden the Commander in Chief by denying him medium-.to long-term dep l oyment of forces without congressional meddling Third, the bill would have established a six-member permanent consultative group of leading Congressmen with whom the President would be required regularly to consult. Such a consultatiosrequirement would ra i se the problem of leaks by Congressmen, either out of carelessness or,-more likely, as political blackmail. ExampleSpeaker of the House Jim Wright was accused of leaking confidential information about Nicaragua, putting at risk the lives of Contras and po l itical prisoners in that comunist.country.k,U 9 Informal Consultation Another, less formal, proposal emerged just before the 1988 presidential election. Six Senators sent a letter to George Bush suggesting a,regular monthly meeting among the President, hi s top advisers and a group of congressional leaders. The signatories included Democrats David Boren of Oklahoma, Bill Bradley of New Jersey, and Sam Nunn of Georgia, and Republicans John Danforth of Missouri, Rudy Boschwitz of Minnesota, and Nancy Kassebau m of Kansas.The letter promised that in return for more real consultation by the executive branch, Congress would agree to accept 17 less congressional intervention and micromanagement of foreign policy. The details of the proposal remain sketchy, but it d o es have the virtue of acknowledging that the War Powers Resolution needs replacing. This proposal acknowledges that more informal arrangements for the two branches to make foreign policy would be an improvement over the current overly legalistic procedure The Biden Panel Finally, an eleven-member Senate Foreign Relations Special Subcommittee on War Powers was formed in summer 1988 and heard testimony on reforming the Resolution. Delaware DemoeratJ0seph:Biden chairs the group. Many witnesses called for repe al of the legislative veto provision that forces removal of U.S. troops even with congressional inaction.
Biden has drafted an article for the Geoqjetown.Law Journal proposing that the War Powers Resolution be replaced by a Use of Force Act which would ack nowledge some greater powers for the President butwould gdd r new requirements for Congress in authorizing the use of such power RECOMMENDATIONS FOR THE BUSH ADMINISTRATION The Bush Administration should pursue a twin-tracEpolij to repeal the War Powers R e solution and replace it with a political arrangement with Congress that recognizes the special constitutional duties and powers of the respective branches. Bush must return the separation-of-powers battle with Congress to the political realm out of the le g al morass in which it is now deadlocked C The first track should be to use the bully pulpit of the Presidency to explain to the American public what is at stake in repealing the War Powers Resolution. The President should Include repeal of the War Powers R esolution as part of a larger strategy to protect executive-branch powers and discretion. The Bush Administration, led by White House Counsel C. Boyden Gray, frequently has referred to the erosion of presidentialauthority at the hands of an overweening, m i cromanaging Congress. There is even an interdepartmental task force to study ways to reverse this trend Convince the public that the very functioning of the federal government is threatened when separation of powers is undermined. The case of Nicaragua ma y be best for explaining how years of differences between the executive and legislative branches result in no clear policy. And the role of such statutes as the War Powers Resolution in promoting such a divisive stalemate must be explained. The President s h ould articulate how the 18 War Powers Resolution is a special case because it can put the lives of Americans at risk Make a plea not just as Chief Executive but also as Commander in Chief. The Presidents job is to protect the nation and its military perso nnef.
This task is made difficult indeed by the impossibility of any medium- to long-range military planning because.of the possibility that inaction by Beirut tragedy as partly caused by the artificial restrictions of the War Powers Resolution Congress wi ll prematurely require the removal of forces. Bush should cite the e Order a study identiMng how the War Powers Resolution has and potentially could endanger U.S. lives and security. The President should order the Secretary of Defense and the White House C ounsel to prepare a study of the actual and potential national security costsof the War Powers Resolution.The role of the Resolution in the Beirut tragedy, for example should be more fully explored and documented. Likely consequences of imposing the curre n t law in such. potential scenarios as a nuclear crisis or combating terrorism should be detailed Stress that the 60-day deadline for removing troops has several clear dangers. This ticking clock could easily force Presidents to escalate the use of force i n the hope of obtaining victory before the time period expires. It sends the obvious message to Americas enemies thatit is foolish to negotiate for a U.S. withdrawal because all they need to do is wait fordie unilateral withdrawal. It also sends the messag e to Americas allies that, despite treaty obligations, 60 days may be the limit of any U.S. military deployment Be blunt in warning of the dangers of any required consultationwith: 8..
Congress before committing troops or taking military+action. Some members of Congress have leaked such information in the.pastand perhaps wouldin the future. Bush should not shy from naming names.The President should direct the White House Counsel to docu m ent congressional leaks and assess their impact on national security The second track that President Bush should pursue to repeal the War Powers Resolution requires explaining to members of Congress that they too, would.be better off limiting their role. t o the. duties envisioned for them by the Constitution. The War Powers Resolution reduces Congresss ability to perform the serious tasks assigned it by the Constitution; Example: Congress never took a position on Reagans Persian Gulf policy despite many ho u rs of I debate on its legal status under the War Powers Resolution. Bush should assure Congress that he would be willing to offer alternatives to the War Powers Resolution that recognize the role Congress must play in defending the nation. As part of his c ongressional strategy, the President should Acknowledge the key role Congress plays in its unique power over appropriations. If Congress flatly refuses to fund a particular agency or 19 project, there is little the President can do. The trouble occurs whe n Congress fails to enunciate a clear policy as in Nicaragua; then the position of Congress is much weaker, and the power of the President to act unilaterally is much greater Declare himself willing to take the heat for military operations, as Chief Execut i ve and Commander in Chief, whenever Congress as a body decides to duck an issue. If a Presidents policy fails, the voters ikill have a chance to make their views known. If Congress refuses-to act by using such traditional constitutional powers as appropri a tions, then Congress likewise should be held accountable through the political process Emphasize that the key to constitutional war powers.is.political accountability to the voters. Presidents and Congresses may find it politically risky either to act or t o fail to act, but in either case the.voters deserve to know where both branches stand, so that they can vote for those whose policies they support and against those whose policies they.oppose I 7 Announce that, within the limits of the safe& of military o perations he will keep Congress informed at every. stage of a use of force:;The reporting requirement of Section 4 of the War Powers Resolution would provide a model for future voluntary information.providing by the President Announce that he will respect the conclusions at. Congress reaches after due deliberation. The Founders intended CGngress to.be the body with the special genius for deliberation. If Congress votes to stop a particular military action, it should.stop. Conversely, if Congress fails to v ote to stop an action, the President must retain the inherent power to defend, the nation as he thinks best.
I Respond significantly and positively to the 1988 letter from Senators proposing an informal consultation process in lieu of+the War Powers Resolu tion. Bush should instruct .hiS-legisl8tive.staff to work closely with the staffs of the six Senators who signed the-li5ttei.Theobjective should be to construct a flexible political framework to replace the rigid statutory approach of the War Powers Resol ution. The solution must not unconstitutionally bind either branch but instead establish a framework for ensuring maximum political accountability for. the actions of each. branch.
Senate Majority Leader Mitchell, for example, has said that the War Powers Resolution severely undercuts the President by encouraging our enemies simply to wait for U.S. law to remove the threat of further American military action On a more public level, the President should embrace the six Senators who signed the letter as a sy mbol of bipartisan consensus on repeal of the War Powers Resolution.
As soon as a gentlemansagreement has been settled with congressional leaders, the President should announce the agreement at a White House press conference 20 CONCLUSION The War Powers Re solution is unconstitutional in its overall approach and also in its specific provisions. As a consequence, Presidents routinely ignore it. Leading Congressmen also have concluded that it no longer sewes any useful function-if it ever did Unique Powers an d Responsibilities. Instead of a law dictating specific procedures and reassigning constitutional rights, the country needs to return to the intent of the Founders of the ConstitutioaThe war powers are shared" by the executive and legislative branches, yet each branch has its own unique powers and responsibilities that must not be mixed. In particular Congress has the power and duty to deliierate and make its views known especially through the power of the purse, while the President must be free to act with dispatch to protect American lives and U.S. security.
Prepared for the Heritage Foundation by L Gordon Crovitz Mr. CroVitz, a lawyer, is assistant editorial page editor of ?he Wdl Smet Joumul 21