Inadvertent implications of the War Powers Resolution.

AuthorNewton, Michael A.
PositionSymposium: Presidential Power and Foreign Affairs

Abstract

The constitutional infirmity of the War Powers Resolution has been uniformly demonstrated by more than four decades of bipartisan experience. The Resolution manifestly fails to eliminate the healthy inter-branch tensions that are in our constitutional DNA with respect to military deployments. In its context, the override of President Nixon's veto represented little more than a stark act of congressional opportunism. The President's veto message was prescient in warning that the Resolution is "dangerous to the best interests of our Nation." This article suggests that the act represents an attempted abdication of the enumerated obligation of Congress to oversee military operations via the appropriations power. It describes reasons why our republic would be well served by clear-eyed reassessment of the War Powers Resolution. It spawned three serious defects: 1) it displaced good faith dialogue between the co-equal branches with after the fact litigation, 2) it highlights American political will as the weakest strand of otherwise formidable military capacity, and 3) it creates a perverse inventive to reverse engineer military operations based on statutory language in ways that undermine strategic objectives. American lives and interests are ill-served by these inadvertent implications.

CONTENTS I. INTRODUCTION II. JUDICIAL AVOIDANCE OF WAR POWERS ISSUES III. HISTORY THE WAR POWERS RESOLUTION AND THE DEBATE OVER EXECUTIVE AUTHORITY IV. RAMIFICATIONS OF THE WAR POWERS RESOLUTION A. President as Litigator-in-Chief B. US Enemies' Ability to Manipulate American Political Will C. Restrictive Rules of Engagement at the Expense of Achieving Strategic Objective V. CONCLUSION I. INTRODUCTION

The constitutional infirmity of the War Powers Resolution. (1) the Resolution) as a statutory straitjacket on executive authority has been uniformly demonstrated by more than forty years of practice. The Resolution has nonetheless exacerbated three profoundly dangerous trends in the context of modern military operations. Since its adoption on November 7, 1973, there are few people who have criticized that legislation with more insight or persistence than my distinguished co-panelist Bob Turner, who has reiterated today his verdict that the legislation was a fraud. (2) I prefer to view the legislative effort to circumscribe the Commander-in-Chief's constitutionally mandated authority as a feckless effort at modern constitutional revisionism. Indeed, the inadequacy of the Resolution for the purpose sought by its proponents was evident almost from the outset. Congressional arguments that the executive power operates under the bonds of legislative handcuffs are accordingly misplaced. Successive executive branch declarations, most recently President Obama's defense of the use of American power over Libya to aid those rebel forces seeking to overcome the tyranny of Muammar Qaddafi, make the Resolution itself something of an archaic expression of an earlier era of American politics. Implicitly conceding their own inability to overthrow the constitutional order, a series of bipartisan congressional actions have implicitly reinforced the impotence of the Resolution with startling clarity.

  1. JUDICIAL AVOIDANCE OF WAR POWERS ISSUES

    The Article III courts have uniformly elected to remain aloof from the legislative-executive struggle. Though this is a subject rich with irony and legal nuance, the interests of time permit me to describe only three such instances, the legal issues surrounding 1) the NATO campaign in Kosovo; 2) US military engagement in Kuwait; and 3) the policy of targeted bombing under President Clinton.

    The NATO air campaign against the forces of Slobodan Milosevic began on March 24, 1999 without any formalized expression of congressional support and prior to the subsequent action of the UN Security Council. As a matter of international law, the Kosovo campaign was hotly contested given that it proceeded without either Security Council authority or a basis derived from a clear and imminent need for national self-defense. (3) Following the campaign, the Security Council rejected a Russian effort to condemn the campaign as a violation of Article 2(4) of the UN Charter. (4) Furthermore, the Council implicitly endorsed the intervention by passing Resolution 1244 under its Chapter VII powers without expressly commending or condemning NATO's actions. (5) On the domestic front, there were several votes in Congress during the air campaign and the coordinated ground actions of the Kosovo Liberation Army (6) that fell short of either authorizing an actual deployment of forces or a making a formal declaration of war. (7) The House of Representatives rejected such a declaration of war as between United States and Yugoslavia by a vote of 2-427. (8) During the bombing, Representative Tom Campbell (R-CA) along with twenty-five members sought a judicial declaration that the actions of the executive violated the Constitution and the War Powers Act. (9) The District Court for the District of Columbia decided that the legislative branch plaintiffs lacked standing due to the absence of an actual "constitutional impasse" or attendant "actual confrontation" for the bench to resolve. (10)

    Similarly, in the widely cited case Dellums v. Bush, fifty-four members of Congress challenged the authority of President George H.W. Bush to order offensive operations to repel the Iraqi aggression into Kuwait based on the authority of the Chapter VII Resolution alone. (11) The case was dismissed as not ripe for judicial determination, though Judge Harold H. Greene wrote in dicta that some of the most sweeping Justice Department arguments would effectively neuter the constitutional authority to "declare war" by turning it into a "merely semantic decision" dependent upon the discretion and drafting skill of the commander-in-chief and his advisors. (12) In language that seems strikingly prescient of the Obama Administration's justifications for the use of American air power over Libya during 2011, Judge Greene opined that "such an 'interpretation' would evade the plain language of the Constitution, and it cannot stand." (13) The Wax Powers Resolution and the broader array of congressional-executive interactions related to armed hostilities thus remain authoritative only as a matter of domestic decision making. The political dynamic over the resort to American military power operates irrespective of the larger scope of articulable authority derived from international legal principles.

    Apart from the series of standing and ripeness determinations, courts have commonly avoided constitutional collisions between the co-equal branches of the federal power by invoking the political question doctrine. In one of the most pointed invocations of the Commander-in-Chief power, President Clinton authorized the bombing of targets in Sudan, Iraq, and Afghanistan in response to terrorist actions against U.S. interests. (14) The Court of Appeals in the DC Circuit reiterated in an en banc decision rendered in June 2010, that "[u]nder the political question doctrine, the foreign target of a military strike cannot challenge in court the wisdom of retaliatory military action taken by the United States." (15)

  2. HISTORY THE WAR POWERS RESOLUTION AND THE DEBATE OVER EXECUTIVE AUTHORITY

    The history of heated political and legal debates between congressional and executive officials has been well summarized in the literature, and time does not permit undue regurgitation today. The tenor of the political debates and the constitutional passion with which they were framed should not in itself be surprising. This extensive history itself leads to judicial abstention, despite the repeated efforts of congressional leaders to force the federal courts to align themselves with legislative branch equities. In the words of the El-Shifa majority:

    By asserting the authority to decide questions the Constitution reserves to Congress and the Executive, some would expand judicial power at the expense of the democratically elected branches. And by stretching beyond all precedent the limited category of claims so frivolous as not to involve a federal question, all would permit courts to decide the merits of disputes under the guise of a jurisdictional holding while sidestepping obstacles that are truly jurisdictional. (16) The War Powers Resolution fails in the first instance on that level alone, as it seeks to eliminate the healthy inter-branch tensions and debates that should guide the use of American power. The "Purpose and Policy" section states that:

    The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces. (17) Section 4(a) further requires the president to submit a report, within forty-eight hours of introducing U.S. Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, to the Speaker of the House of Representatives and to the president pro tempore of the Senate. (18) The report must provide the circumstances necessitating the introduction of such forces, the constitutional and legislative authority under which such introduction took place, and the estimated scope and duration of the hostilities or involvement. (19) Section 5(b) requires the president, within sixty calendar days of submitting such report, to terminate any use of the U.S. Armed Forces unless Congress takes certain enumerated actions to authorize continuing combat or "is physically unable to meet as a result of an armed attack upon the United States." (20) The...

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