The War Powers Resolution: A Rationale for Congressional Inaction

658Relationship of international law and municipal law — Conduct of foreign relations — Justiciability of foreign relations questions — Military action and military aid to foreign government — Whether raising justiciable questions — United States Constitution — War power — War Powers Resolution — United States action in El SalvadorWar and armed conflict — Power to declare war and to use force — United States Constitution — Relationship between powers of Congress and powers of the Executive — The law of the United States

A hallmark of the Bush Administration has been its clear and insistent claim that is for the President to decide if, when, and how arms are to be used as an instrument of policy. This new presidentialism debuted Christmas of 1989, when President George Bush launched Operation Just Cause against Manuel Noriega of Panama. In the hours preceding the Panamanian expedition, the President did not consult Congress in every possible instance as was required by the War Powers Act. Rather, on the day after the invasion, President Bush dispatched a letter to the Senate allowing that he was providing [his] order to inform Congress so that he might be consistent the War Powers The reference to the War Powers Resolution was hardly more than an institutional courtesy to the legislature, for, as Mr. Bush explained, he had committed forces pursuant to his constitutional authority with respect to the conduct of foreign relations and as Commander and Chief. In Operation Desert Shield, the President dispatched an immense battle group, over 230,000 troops, to Saudi Arabia while Congress was its summer recess. Despite the requirement of the War Powers Resolution that the President report writing within 48 hours commitment of U.S. forces or any substantial enlargement of forces, President Bush waited for six days to notify Congress. Mr. Bush sent his report to congressional leaders only after the first American deployments actually landed. But, as the case of Panama, the President announced once again that was his desire that Congress be fully informed, and that his letter demonstrated that U.S. policy was being conducted a fashion consistent with the War Powers Resolution. The core provision of the War Powers Act-a 90-day time limit on the deployment, if U.S. troops were danger of seeing imminent combat -was neatly finessed. Operation Desert Shield did not bode any real danger for U.S. troops, President Bush contended, since military action was not any way anticipated. To the contrary, Mr. Bush stated, it

Recent war powers debates have seen the emergence of two opposing viewpoints. Those who advocate close adherence to the Constitution and who assume congressional predominance in matters of war have squared off against those who point to modern political realities that require presidential independence and power. This article argues that the resulting interpretive dichotomy is both false and unnecessary. The Constitution created a vigorous executive in the conduct of foreign affairs, checked and balanced by an equally powerful Congress. This is borne out by analysis of the language of the Constitution, by an examination of its intent, and by judicial doctrine. An additional method of interpretation, structural argument, integrates text, intent, and doctrine and provides a theoretically sound and politically feasible framework for the exercise of the war power by the political branches.

The subject of parliamentary war powers has sparked debates of late. The role of the US Congress in making US foreign policy and in war-making has been the focus of numerous studies. Debates on the “war-making” powers of the US Congress and the President have also been topical in the United States recently. The actions of Barack Obama's administration in the context of Libya (2011), Syria (2013) and, more recently, the discussion on the need to have a new authorization for the use of force because of ISIS, have again ignited discussion about the powers of the President as the Commander-in-Chief vis-à-vis the powers of Congress. The topical question is whether and when the President should seek congressional authorization for the use of the US armed forces. This paper claims that Congress has constitutionally established war powers, but they are contingently manifested. In order to explicate this, the paper explores the procedures of congressional involvement in war-making, the term used in congressional debates in the early 1970s when the War Powers Resolution was enacted, and illustrates congressional debates on the war powers between the branches of government. The selected congressional debates on, and the procedures of, congressional actions related to the possible use of force authorizations in relation to Libya (2011) and Syria (2013) are examined more specifically to explicate the (plausible) role of Congress. In so doing, the paper draws on both political and theoretical aspects of discussions on US Congress war powers.

Congressional scholars, like members of the House and Senate, have paid far more attention to domestic affairs than to foreign and defense policy. For much of the era after the Second World War, the president dominated the international arena buoyed by the vast national security bureaucracy and the deference of lawmakers fearful of nuclear war. Scholars saw little knowledge to be gained, apparently, in examining legislative activity during the Cold War consensus that stretched from 1947 to 1968. In hindsight, less consensus and less deference prevailed during that period than many observers assumed. With the legitimacy of the presidency in tatters after Vietnam and Watergate, however, Congress entered a period of resurgence. Lawmakers attempted greater control over military action through the War Powers Resolution and the creation of new committees to monitor the intelligence community, and they dramatically increased the frequency of oversight hearings. The activism lasted into the 1990s and continued until members of Congress lapsed into quiescence after 9/11. The renewed activity on the Hill following Watergate stimulated scholarly interest in the activities of lawmakers with respect to foreign affairs. The questions were similar to those of previous decades, despite variation in congressional influence and scholarly efforts to explain it. The debate about the constitutional prerogatives of the executive and legislative branches, for example, remained a lively one, with the preponderance of scholarly opinion assigning greater weight to Congress than presidents have been willing to concede. In addition, evidence regarding the extent of legislative influence over foreign policy decisions remained contestable, as scholars grappled with inadequate data, “hidden hand” maneuvers of actors in both branches, and tendencies among lawmakers to assess defense programs with an eye to local economic benefits. Despite the numerous analyses of events in which Congress engaged the president, the triggers for legislative interventions and their impact on policy decisions have remained unclear. Increasingly, researchers have identified lawmakers’ primary power as the ability to organize public discourse about foreign affairs and cue citizens to potential problems with the president’s actions. This is a formidable weapon if members choose to use it—or if presidents fear they might. Nevertheless, the president retained a decided advantage in the “struggle” with Congress, even to the extent of gaining additional leverage in domestic matters. Whatever the level of legislative activity and influence, members of Congress appear to pay for presidents’ unpopular wars at election time. Unable to escape the consequences of executive discretion, lawmakers may yet revive their capacity for participation in the realm of foreign affairs and stimulate a new round of research. Several more recent essays, however, suggest that lawmakers have proved unable or unwilling to challenge President Obama effectively or assert themselves in dealing with President Trump.

Few pieces of legislation in the realm of foreign policy decisionmaking have greater potential effect or are more controversial than the War Powers Resolution. The Resolution was intended originally to create greater leverage for Congress over executive use of military force. In this effort, it is widely believed that the Resolution has been ineffective. This paper uses an information theoretic model to examine the War Powers Resolution. Results of the modeling process allow for two general assertions. First, the model suggests that the Resolution is an optimal choice of procedure by the legislature. In other words, the War Powers Resolution is better for Congress than its alternatives. Second, the information theoretic approach used here seems to coincide with an anecdotal history of the war powers debate better than do alternative explanations. Indeed, the analysis helps to explain why war powers legislation was not considered seriously sooner. Though criticism of the War Powers Resolution has its merits, claims for a variety of alternative procedural systems may be open to challenge. Those wishing to establish mechanisms for curtailing executive adventurism abroad may find it more rewarding to focus efforts on the budgeting process or on the reduction of military force structures.

Using the events leading to the War Powers Resolution of 1973 and its subsequent impact on US military interventions as an empirical example, this article elaborates the notion of `legacy chains'. Expanding on the general notion of policy legacies, the discussion describes the effects that post-World War II US military interventions have had on each other through the policy legacies left by each in turn. The argument allows that military intervention legacies have their strongest impact on decisionmaking for an immediately subsequent intervention but can also leave durable impressions on the institutional context, which, after being modified by subsequent military interventions, constitute `legacy chains'. These legacy chains are path-dependent processes, in that their institutional embodiments follow `increasing returns' logics and will remain in place until the structure of returns changes, usually due to a `critical shift'. In response to a series of perceived abuses of presidential war powers following World War II, the War Powers Resolution sought to ensure congressional participation in future commitments of US forces to hostilities. It has not done so. The lasting legacy of the War Powers Resolution is an unintended consequence of the way it was formally institutionalized. Presidents, following the letter of the resolution, have designed post-War Powers Resolution military interventions to either be short (so the 60-day mandatory reporting period specified in the resolution ends with a fait accompli) or popular, so that public and congressional opinion are sufficient to ensure approval of the operation, either before it starts or once underway. While the actual legacy of the War Powers Resolution is not what was intended at its inception, it is unlikely to be formally changed until a future (hypothetical) abuse of war powers sufficiently egregious to break through its institutional inertia.

: The framers created a model for the war powers when they drafted the United States Constitution. The model has not been followed. The practice of presidents has largely replaced the text. Presidents have come to wield the bulk of the national war powers. The War Powers Resolution (1973) was Congress's first attempt to reassert its right to participate in war making. The War Powers Resolution failed. This thesis argues that the War Powers Resolution should be repealed and replaced with either a law or informal power sharing arrangement. In either case the effort must be cooperative or the replacement will fail also. This thesis builds a model for the war powers, based upon the intent of the framers. It then proposes this model as the proper basis for a remedy.

The committee took the view that bridges are needed to permit more effective cooperation between the two branches of government in foreign affairs. Three areas for change were considered. The first involves decisions to use military force. Concern was expressed that the War Powers Resolution does not go far enough. The committee also saw a need for legal restraints upon the use of nuclear weapons. Members of the committee endorsed ex ploration of mechanisms to involve Congress in decision- making on this particularly momentous problem. The second area of change concerns, specifically, state secrets and the problem of executive privilege. It was felt that confidentiality and secrecy are invoked too often by the Executive branch, though some confidentiality is necessary. The third area con cerns legislative oversight after the event. The committee would endorse constitutional amendment, if necessary, to per mit sharing of authority in foreign affairs.

In war powers and certain other areas of foreign affairs, the executive rather than the judiciary appears to exercise the constitutional authority to declare "what the law is."1 For instance, when presidents have committed troops to foreign hostilities in the past decade, they have claimed the constitutional authority to do so without congressional authorization, essentially refusing to acknowledge that they were bound by the War Powers Resolution.2 Recently, President Bush declared that certain provisions in two bills were not legally binding because they derogated from his authority in foreign affairs despite the fact that he himself had signed them into law.3 In each of these instances, the

During his four years in office, Congress made historic challenges to President Donald Trump’s authority as Commander in Chief, twice invoking the 1973 War Powers Resolution. The first resolution, passed in 2019, expressed disapproval of the U.S.’ logistical and material support for Saudi Arabia’s campaign against the Houthi rebel movement in Yemen. The second challenge occurred in 2020 after Trump authorized a drone strike that killed Iranian Major General Qassam Soleimani. In response, Congress passed a WPR that stipulated that any future military action against the regime would require express legislative authorization. Using a case study approach, this essay examines why Congress chose to employ the WPR as a policy tool after decades of dormancy. Ultimately, I argue that a confluence of factors compelled majorities in both chambers of Congress to use the War Powers Resolution to make a powerful rebuke of the administration’s policy. Drawing on a wealth of existing literature about the factors that impede or compel Congressional activism in use-of-force debates, I find that in both cases, members of Congress faced strong moral, legal, and strategic incentives to act, with few attendant political risks. As such, while the passage of two wars powers resolutions represented an important milestone in interbranch relations, it likely does not presage a new era of Congressional assertiveness in war powers. Keywords: U.S. foreign policy; Donald Trump; Congress

During the United States' military strikes in Libya in 2011, the debate over the authority to use force reached levels not experienced in recent American history. Many members of Congress, both Democrat and Republican, expressed concern over what they viewed as a usurpation of Congress's constitutional war powers. These concerns were exacerbated when the Obama administration maintained that it was not engaged in ‘hostilities’ and that the War Powers Resolution, which was intended to limit the president's war authority, did not apply to this use of force. Yet despite the strong levels of bipartisan constitutional pressure waged against the commander in chief, these efforts were generally discouraged, co-opted or simply opposed by the House and Senate leadership. This research examines the role of Congress's institutional and party leaders, specifically Speaker of the House John Boehner (R-OH), and Senators John Kerry (D-MA) and John McCain (R-AZ), and finds that their leadership was instrumental in keeping Congress's war powers authority subdued, which limited congressional interference in President Obama's military actions in Libya. Understanding these political dynamics is crucial to understanding when and how the world's sole superpower commits to overseas military actions.

The War Powers Resolution' once again has gained center stage in the foreign policy debate. In Lebanon, Grenada, and Central America, significant numbers of American troops have been deployed within the past year. These deployments, each of which was ordered by the President on his own authority without prior consultation with the Congress, have stirred a new debate about presidential war-making powers. The debate centers on the question of whether, in this nuclear age, Congress should have a greater voice in any decision to deploy U.S. forces where hostilities exist or are imminent. Such decisions, in my opinion, should be based on the collective judgment of Congress and the President. This is in accord with both the intention and spirit of the Constitution. Historically, our Presidents have taken the initiative on matters of war or peace, but I am heartened that Congress has recently shown a new determination to fulfill its proper constitutional role. The War Powers Resolution, enacted in 1973, embodies that determination. This afternoon I will discuss several aspects of that Resolution: its historical background, its constitutionality, whether it reflects sound policy, its effectiveness, and whether it needs to be strengthened.

The War Powers Resolution and the Concept of Hostilities

: Senator Sam Nunn, in his homespun, but unequivocal, manner, said, War Powers Resolution is broke' and should be fixed. In the 21 years since the resolution was enacted over President Nixon's veto, neither the Executive nor the Legislative branches have been happy with the law, a law which was intended encourage serious dialogue on war/peace issues between the branches of government. Why hasn't a law conceived for such an apparently noble purpose succeeded? Several factors have led many to agree with Sen Nunn that the law should be changed, if not repealed outright Among the factors cited are presidential defiance, congressional irresolution, and judicial abstention. The President views the resolution as an unwarranted infringement on his constitutionally mandated role as Commander-in-Chief Congress, when offered the opportunity, has not developed the necessary consensus to directly challenge the President when it believes he has not fully complied with the law. Finally, the courts have consistently avoided taking sides on what has been viewed by the courts as a political question.