The War Powers Resolution - a dim and fading legacy.

• Author: Crook, John R.
• Position: Symposium: Presidential Power and Foreign Affairs

Abstract

The 1973 War Powers Resolution, adopted over the veto of a weakened President Nixon after the Vietnam War, has not fulfilled its supporters' hope of a stronger Congressional role in decisions involving U.S. uses of force. No administration has accepted its key provisions' constitutionality, and Congress has been unwilling or unable to perform the role it set for itself of approving or terminating the introduction of U.S. forces into hostilities. Hence, the Resolution has had only modest impact. Despite occasional debates regarding compliance, it has not materially affected successive presidents' decisions to use force. It seems likely to have less impact in the future, given Congress's broad authorization for the use of force following the 9/11 attacks and the changing nature of warfare, including the growing role of non-military actors, cyber warfare and other new forms of conflict, secret operations, and remotely piloted weapons.

CONTENTS I. INTRODUCTION II. THE RESOLUTION IN PRACTICE III. WHAT OF THE FUTURE? A. The Continued Role of the A UMF B. The Changing Nature of Warfare IV. CONCLUSION. I. INTRODUCTION

I begin with a disclaimer. I am not a scholar of constitutional or national security law. For thirty years, I was employed in various legal capacities by the U.S. Department of State. Since then, I have edited the American Journal of International Law's section on Contemporary U.S. Practice Related to International Law for many years. I was also a military police lieutenant in the early 1970s, in a U.S. Army badly scarred by its long and painful experience in Vietnam. (1) Thus, I am familiar with debates about the War Powers Resolution. (2) All this has left me with a generally "pro-executive" bias in the recurring debates about the proper roles of Congress and the executive in national security matters.

I will not try to add to the discussion on the constitutional propriety of the War Powers Resolution, nor will I do much lawyerly parsing of the text. Instead, I will briefly describe how the Resolution has had only a modest impact over the last forty years and then suggest why I think it is likely to have even less significance going forward.

The War Powers Resolution was the offspring of an increasingly unpopular war and an increasingly unpopular presidency. (3) As Professor Stephen L. Carter observed, it was "forced on a weakened President Nixon by a Congress brimming with confidence in the wake of the Watergate scandals." (4) Consider the timeline:

March 1971--The approval rating for U.S. Vietnam policy dropped to 41%, and approximately half of all Americans polled thought the war was "morally wrong." (5) First Lieutenant William Calley was convicted of murdering twenty-two civilians at My Lai by a court martial. June 1972--The Watergate burglary. January 23, 1973--Paris Peace Accords signed. January 27, 1973--Secretary of Defense Melvin Laird announced the end of the draft. Spring 1973--The Watergate hearings began. June 1973--Congress approves the Case-Church Amendment by wide margins, barring further military involvement in Vietnam, Laos, and Cambodia. October 1973--Vice President Spiro Agnew resigned and pleaded guilty to criminal charges. November 7, 1973--The War Powers Resolution was passed over President Nixon's veto. May 1974--Congress began impeachment proceedings. August 9, 1974--President Nixon resigned. The War Powers Resolution is the product of a time when Congress was riding particularly high and the presidency was particularly weak. (6) That unusual array of circumstances has not been repeated. In the ensuing years, no administration has accepted the constitutionality of the Resolution's key provisions. (7) At the other end of Pennsylvania Avenue, Congress has not mustered the collective will to insist on full and timely compliance with the Resolution in a wide range of cases. (8) From time to time, the Resolution has offered both Republican and Democratic presidents' political opponents an avenue to attack their compliance with particular policies or actions. Nevertheless, Congress has not shown itself willing or able to perform the role it set out for itself in Section 5 of the Resolution. (9)

2. THE RESOLUTION IN PRACTICE

   For the details of the often intricate interplay between Congress and various presidents under the Resolution, the best starting point is the detailed studies of past practice prepared by the Congressional Research Service of the Library of Congress. (10) In the forty years since the Resolution was adopted over President Nixon's veto, there have been at least 136 reports filed "consistent with" the Resolution. (11) Only one, President Ford's report on the deployment of U.S. forces to recover the SS Mayaguez twelve days after the fall of Saigon in 1975, specifically stated that forces had been introduced into hostilities or imminent hostilities. (12)

   While debates regarding compliance (or non-compliance) with the Resolution have arisen from time to time, the Resolution has not materially affected successive presidents' use-of-force decisions. I know of no case where a president, Republican or Democratic, refrained from utilizing U.S. military force solely because of the Resolution. In the forty years since its enactment, presidents of both parties have utilized U.S. forces in response to a wide array of challenges. I believe that, at most, the Resolution has affected these actions at the margins.

   Successive presidents' uses of military force have been too numerous to detail here. There were few incidents involving use of U.S. forces on President Carter's watch, except for the failed raid to free hostages from [ran in 1980. (13) President Reagan sent U.S. forces to Lebanon in 1982, (14) contending that the circumstances did not constitute hostilities while also insisting that the Resolution was unconstitutional. (15) As Professor Turner describes, this deployment of U.S. forces was unpopular in Congress and led to a rare instance of congressional action under Article 5 of the Resolution. (16)

   Faced with strong congressional resistance, the Reagan Administration and Congress struck a deal: the president did not concede the Resolution's constitutionality, but did sign a joint resolution authorizing U.S. Marines to remain for eighteen months for limited purposes and subject to reporting requirements. (17) The deal was an uneasy one; Reagan's signing statement records his disagreement with Congress's determination that the War Powers Resolution had been triggered, arguing that "the initiation of isolated or infrequent acts of violence against United States Armed Forces does not necessarily constitute actual or imminent involvement in hostilities, even if casualties to those forces result." (18)

   President Reagan withdrew U.S. forces from Lebanon before the end of the eighteen-month deployment after 241 Marines were killed in the October 23, 1983 bombing of their Beirut barracks. (19) Although the United States had clear intelligence identifying the perpetrators of the bombing, the president did not order military action against them. (20) During Reagan's second term, the deployment of U.S. naval forces in the Persian Gulf (which included direct conflicts with Iranian forces) led more than 100 members of Congress to sue in pursuit of compliance with the Resolution; their action was dismissed on equitable and political question grounds. (21) This was one of several unsuccessful actions brought by members of Congress during the Reagan years invoking the War Powers Resolution. All of these cases were dismissed on preliminary grounds, (22) as have other cases since.

   The October 1983 U.S. invasion of Grenada (23) occurred at almost the same time as the Beirut bombing. The invasion offers an interesting illustration of how the Resolution can suddenly become less relevant when a president takes military action with broad public support. While most U.S. troops had left the island by the sixty-day deadline, a few remained, but there was little congressional inclination to make an issue of it. (24)

   President George H.W. Bush's December 1989 invasion of Panama and the removal of General Noriega from power also seem to have been popular with the U.S. public and with members of Congress (25) --sufficiently popular to muffle any congressional concerns involving the War Powers Resolution. Although the invasion involved a large-scale deployment of U.S. forces into a situation involving firefights and U.S. casualties and was effected with little or no...