The War Powers Resolution at 40: still an unconstitutional, unnecessary, and unwise fraud that contributed directly to the 9/11 attacks.

• Author: Turner, Robert F.
• Position: Symposium: Presidential Power and Foreign Affairs

Abstract

The 1973 War Powers Resolution was a fraud upon the American people, portrayed as a legislative fix to the problem of "imperial presidents" taking America to war in Korea and Vietnam without public approval or the constitutionally required legislative sanction. By its own terms, the War Powers Resolution would not have stopped the Vietnam War. Sadly, this and other legislative intrusions upon the constitutional authority of the president contributed to the loss of millions of lives in places like Cambodia, Afghanistan, Angola, and Central America. The statute played a clear role in encouraging the terrorist attack that killed 241 Marines in 1983, and equally clearly encouraged Osama bin Laden to kill thousands of Americans on September 11, 2001. Similarly unconstitutional usurpations of presidential power prevented our Intelligence Community from preventing those attacks and dissuaded a key ally from sharing sensitive information that might also have prevented them. After forty years, the time has come to bring an end to this congressional lawbreaking.

CONTENTS I. INTRODUCTION II. THE WAR POWERS RESOLUTION IS UNCONSTITUTIONAL III. THE WAR POWERS RESOLUTION IS UNNECESSARY IV. THE WAR POWERS RESOLUTION IS UNWISE V. CONCLUSION I. INTRODUCTION

More than forty-six years have passed since I first became interested in the constitutional separation of foreign affairs powers while listening to a lecture by the legendary University of Chicago scholar Professor Quincy Wright. (1) At the time I was working on my undergraduate honors thesis on the war in Indochina, and following graduation I was commissioned in the Army and served twice in the Republic of Vietnam. After leaving the Army at the end of 1971 as a junior Captain, I accepted a fellowship at Stanford's Hoover Institution on War, Revolution and Peace where I continued my work on the war and authored the first major English-language history of Vietnamese Communism. (2)

The War Powers Resolution was enacted over President Nixon's veto on November 7, 1973, as a response to the Vietnam War. (3) Just over a month later, my Hoover Institution fellowship landed me in the office of Assistant Senate Minority Leader Robert P. Griffin, of Michigan, a member of the Foreign Relations Committee. Soon thereafter, the Senator hired me off of the fellowship and for five years I served as his national security adviser, dealing directly with every war powers issue addressed in the Senate during that period. In 1981, while serving as Special Assistant to the Under Secretary of Defense for Policy, I wrote an eighty-page memorandum on the modern utility of formal declarations of war. (4) Later, while I was an attorney in the White House, I frequently briefed members of Congress (including, at the time, such largely unknown figures as Representative Newt Gingrich and Senator Dan Quayle) about the 1973 statute at the request of the National Security Adviser. I worked on war powers issues again in 1984-198585 while serving as Acting Assistant Secretary of State for Legislative Affairs.

As a scholar, I've published two books (5) specifically about the War Powers Resolution and testified repeatedly in both the House and Senate on the statute. My 1,700-page SJD (academic law doctorate) dissertation dealt heavily with war powers issues, and over nearly a quarter-of-a-century I've taught courses and seminars dealing with constitutional war powers at the undergraduate and post-graduate level at the University of Virginia, where in 1981 I co-founded the Center for National Security Law.

All of that is to emphasize that these are not new issues to me. And while I like to think that my views have evolved and become perhaps a bit more sophisticated over the decades, my basic conclusions have not changed since 1973--irrespective of which political party has occupied the White House. Put simply, I believe the War Powers Resolution is unconstitutional, unnecessary, and unwise. This is not merely a theoretical problem, because in my view that statute has done tremendous harm to U.S. national security and the cause of world peace--including playing a key role in persuading Osama bin Laden to launch the 9/11 attacks that killed nearly 3,000 innocent Americans and precipitated conflicts that claimed hundreds of thousands of lives and depleted our treasury by more than one trillion dollars. (6)

My time is limited, but let me at least summarize my concerns.

2. THE WAR POWERS RESOLUTION IS UNCONSTITUTIONAL

   To understand the separation of constitutional powers regarding "war" and the use of military force, we need first of all to appreciate the importance of Article II, Section 1, which grants to "a President of the United States" the nation's "executive Power." (7) Today, Americans read that clause and assume it conveys merely the power to "execute" the laws and policies established by Congress. But that was not the understanding of the men who wrote the Constitution during the summer of 1787. They understood "executive power" as the term was used by Locke, (8) Montesquieu, (9) and Blackstone (10)--whose writings were often referred to as the "political bibles" (11) of the Framers. Each of these writers viewed what Locke described as the business of "war, peace, leagues and alliances" (12) to be the province of the king, prince, or magistrate--the "executive" officer of the government.

   How do we know the Founding Fathers embraced this view? Because they repeatedly told us so in clear terms. Writing in June 1789, Representative James Madison explained: "IT]he Executive power being in general terms vested in the President, all powers of an Executive nature, not particularly taken away must belong to that department. ..." (13) The following year, Madison's friend and mentor Thomas Jefferson wrote in a memorandum to President Washington:

   The Constitution ... has declared that "the Executive power shall be vested in the President," submitting only special articles of it to a negative by the Senate.... The transaction of business with foreign nations is Executive altogether, it belongs, then to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly. (14) Those "[e]xceptions" included the Senate's negatives on treaties and diplomatic appointments, as well as the power of Congress to "declare War." (15) President Washington discussed Jefferson's memorandum with Chief Justice John Jay and Representative Madison, recording in his diary three days later that both agreed with Jefferson that, beyond these enumerated exceptions, the Senate had "no Constitutional right to interfere" in the business of diplomacy, "all the rest being Executive and vested in the President by the Constitution." (16)

   Jefferson's chief rival in Washington's cabinet, Treasury Secretary Alexander Hamilton, took an identical position in 1793:

   The general doctrine then of our constitution is, that the Executive Power of the Nation is vested in the President; subject only to the exceptions and qualifications which are expressed in the instrument.... It deserves to be remarked, that as the participation of the Senate in the making of treaties, and the power of the Legislature to declare war, are exceptions out of the general "Executive Power" vested in the President, they are to be construed strictly--and ought to be extended no further than is essential to their execution. (17) Yet another key Jefferson rival, Chief Justice John Marshall, reaffirmed the president's independent constitutional responsibilities in the field of foreign affairs in perhaps the most famous of all Supreme Court decisions, Marbury v. Madison, when he wrote:

   By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.... [W]hatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. (18) Marshall illustrated this principle by mentioning the Secretary of Foreign Affairs (later retitled Secretary of State) and declaring that the acts of that officer "can never be examinable by the courts." (19) As Professor Wright observed in 1922, "when the constitutional convention gave 'executive power' to the President, the foreign relations power was the essential element in the grant. ... " (20)

   In addition to understanding the vast grant of "executive Power" to the president with respect to foreign affairs, we must also recognize that the Constitutional Framers intentionally limited the authority of the legislature over the business of war. In the original draft, Congress was empowered "to make War"--giving it essentially all powers related to war beyond the actual command of troops, as had been the case under the Articles of Confederation. (21) But on August 17, 1787, James Madison moved to amend the language to give Congress only the power "to declare war." (22) After Rufus King observed that "make" war might give Congress some role in the conduct of war, which was "an executive function," the vote of Connecticut was changed to ay and Madison's motion prevailed with but a single negative vote. (23) Soon thereafter, a motion to involve Congress in decisions to conclude wars ("to give the Legislature power of peace") was unanimously rejected, (24)

   The concept of a "declaration of war" was a term of art from the law of nations, and such instruments were only considered necessary when a nation was about to launch an all-out "aggressive" attack against a nation with which it was at peace. The Framers understood the concepts...