Citation: 70 A.B.A. J. 10 1984

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At Issue

WITH the deployment of troops in Lebanon and Gre- ' Inada, a spotlight has been thrown on the War PowersResolution of 1973.

Passed over the veto of President Nixon in thewake of Watergate's "Saturday Night Massacre," theresolution was designed by Congress to put a leashon the president and to restrict his authority todeploy troops in a long, undeclared presidential war.

While protesting the legality of the resolution, allpresidents have complied with its requirements thatwithin 48 hours of a troop commitment, the presidentmust issue a detailed report. The resolution alsorequires that all U.S. troops must be withdrawn from

hostilities within 60 days unless Congress specificallyauthorizes a longer term of activity. N

The presidents have made a point of saying theircompliance was voluntary, not mandatory. If it came _to a dispute, would the resolution be held constitu- .

tional or would its enforcement be blocked? Herewith ,are the opposing views of two noted constitutional .

experts.

The War Powers Resolution.... Of doubtful constitutionalityBy John Norton Moore

"IT DESERVES to be remarked, that as the participation ofthe Senate in the making of treaties, and the power of thelegislature to declare war, are exceptions out of the general,executive power' vested in the president, they are to beconstrued strictly, and ought to be extended no further thanis essential to their execution."

So wrote Alexander Hamilton in 1793 in the famous Pacif-icus-Helvidius debate with James Madison, illustrating thatthe role of Congress and the president in the conduct of for-eign policy has been debated throughout American history.

Until the loss of presidential authority associated with theVietnam War and the Watergate crisis, that struggle hadbeen broadly won by the presidency. Indeed, in PresidentTruman's commitment of a quarter of a million Americantroops in Korea without congressional authorizing legisla-tion-or serious congressional concern about the absence ofauthorization-that struggle may have been too broadlywon.

Vietnam and Watergate, however, changed all that, andperhaps too broadly in the opposite direction. In place ofcongressional opinion and scholarship supportive of presi-dential power, concerns were expressed about an "imperialpresidency," and Congress embarked on a decade of themost activist micro-management of foreign policy in Amer-ican history.

A centerpiece of this new congressional activism is theWar Powers Resolution, passed in 1973 at what was proba-bly the low point of presidential power in this century. Sub-sequently, no American president has accepted therestrictive vision of presidential authority embodied in this

.... is constitutional and enforceableBy Frederick S. Tipson

THE Constitution was written by people who believed thatCongress should have the central role in decisions to go towar, so long as the president retained-in James Madison'swords-"the power to repel sudden attacks." (See TaylorReveley's valuable War Powers of the President and theCongress (1981).) Beyond this vague conception, the authorsof the Constitution gave little guidance regarding the diffi-culties this division of authority would pose. The problemof the past 200 years has been to adapt this principle to thecircumstances and responsibilities of a global actor whosemilitary capacity and constancy frequently are requisites toworld peace and security.

The War Powers Resolution of 1973 was the first attemptto address the problem in legislation. Its critics resolvenothing by repeating the truism-which the resolution itselfcontains-that the Constitution cannot be amended bymere statute. Indeed, similar truisms are equally applicableregarding amendment by military necessity, congressionalacquiescence or strained interpretations of language and his-tory. The resolution's authors proceeded in accordance withthe "necessary and proper" clause of the Constitution tocodify a procedure based on the recognition of the presi-dent's emergency authority to defend the territory, armedforces, citizenry and other vital interests of the UnitedStates.

Two key provisionsIs it constitutional? Critics focus on two key provisions.

On the legislative veto issue, they cite the Supreme Court'sChadha decision of last summer, 103 S.Ct. 2764, as final

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Moore

resolution. It represents, quite simply, a congressional viewof the war powers.

Significant problemsThere are three significant problems with the War Powers

Resolution. First, it embodies a mythology-inherent in itspassage - that the Vietnam War was a "presidential war"and that the resolution would have prevented that war. Butunlike the earlier setting in Korea, in 1964 Congress passedthe Southeast Asia Resolution by a vote of 504-2 legallyempowering the president to use armed forces to defendVietnam. Sen. Sam Ervin, perhaps the Senate's pre-eminentconstitutional authority, described this resoultion as "adeclaration of war in a constitutional sense." And, amongthe other congressional measures continuing this authoriza-tion, in 1966, with more than 200,000 U.S. troops in Viet-nam, the Senate voted 92-5 to table an amendment to repealthe Southeast Asia Resolution. Paradoxically, this congres-sional authorization for the war would have met squarelythe requirements of the War Powers Resolution said to bepassed to prevent future similar involvements.

Second, the resolution is at least in part unconstitutional.The essence of the resolution- is an effort by Congress todefine the war powers of Congress and the president. Butnothing could be clearer, as enunciated by the SupremeCourt in Myers v. United States, 272 U.S. 52 at 128 (1926).than that the constitutional scheme of separation of powerscannot be altered by one branch or indeed by anything shortof constitutional amendment.

Congress has exclusive authority to declare war, but ithas erred in the War Powers Resolution in implicitly deny-ing presidential authority to use the armed forces abroad insettings short of "war." It was recognized by the SupremeCourt in the Slaughterhouse Cases, 83 U.S. 36, 79 (1873),and In re Neagle, 135 U.S. 1, 63-64 (1889), that the presidenthas the authority to use the armed forces to protect Amer-icans abroad, and presidential authority to use the armedforces abroad in settings short of "war" is almost certainlyconsiderably broader. Indeed, presidents have used thearmed forces abroad in well more than 100 instances short ofwar without congressional authorization.

Another constitutional problem for the resolution is pre-sented by the recent Supreme Court decision in I.N.S. v.Chadha, 103 S. Ct. 2764 (1983). That decision, striking downthe legislative veto, invalidates the legislative veto in Sec-tion 5(c) of the resolution. More important, however, underChadha if Congress cannot force a troop withdrawal by amajority vote of both houses, how can it force such a with-drawal by complete inaction for 60 days, as Section 5(b), theheart of the resolution, would require?

Third, the resolution fuses a potential constitutional con-frontation between Congress and the president, quite possi-bly to go off at a time of foreign policy crisis when thenation can least afford it. In this and other ways, the resQlu-tion paradoxically may reduce deterrence and increase therisk of war or American casualties.

A serious dilemmaFor the presidency, a War Powers Resolution believed to

be unconstitutional can force a serious dilemma at a time ofnational emergency. The president must either assent to anassertion of congressional power inconsistent with his dutyto uphold the Constitution or challenge the resolution andrisk severe harm to the foreign policy interests of the nationin the resulting battle with Congress.

Tipsonvindication of a long-standing presidential objection to Sec-tion 5(c) of the resolution. But if Chada did strike down5(c), it is certainly not clear from the circumstances or rea-soning of that decision or from its mute progeny two weekslater (Process Gas Consumers Group v. Consumers EnergyCouncil, 103 S.Ct. 3556.) The main reason is the one theCourt itself gave in two decisions issued in 1981: Haig v.Agee, 453 U.S. 280, and Dames & Moore v. Regan, 453U.S. 654. In both decisions the Court made clear that therelationship between presidential and congressionalauthority is different in foreign and domestic affairs. In par-ticular, the Dames & Moore decision rested on anextraordinary finding of implied congressional delegation ofauthority to the president through its silence and "acquies-cence" precisely because of the special circumstances inher-ent in the foreign affairs realm.

There are excellent reasons for recognizing different stan-dards for the delegation of authority to the president in for-eign and domestic affairs, as repeatedly emphasized by theCourt since its landmark decision in United States v. Cur-tiss-Wright Co., 299 U.S. 304 (1936). But if the president ispresumed to derive different, and at times plenary, authorityin foreign affairs from the fact of congressional inaction, itshould also follow that the Congress can effectively removesuch an implication by registering its disapproval-or lackof support-by majority vote-that is, concurrent resolu-tion. Even if Congress could not completely confine thepresident's actions in any given case, it should certainly beable to counter any suggestion that he is acting with the"implied consent" of the legislative branch and thereby thefull authority of the United States government.

If this difference applies to foreign affairs generally, it isespecially true in the war powers area, where Congress isgenerally presumed to be unable to delegate at all. At a min-imum, the Court should distinguish the "statutory" use ofthe legislative veto from what might be called its "constitu-tional" use in areas of shared authority like war powers. Itwould be highly unwise for the Court to deny to the politicalbranches the best available mechanism to exercise theirjoint responsibilities.

The 60-day limitSimilarly, the 60-day limitation on the president's emer-

gency authority in Section 5(b) is attacked because it seems

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Moore

In addition to the potential damage to deterrence by thisthreat of crisis confrontation, the 60-day withdrawal provi-sion of Section 5(b) may in some settings reduce deterrenceand increase American casualties. Knowing a precise time-table for withdrawal could certainly enable an enemy toincrease American casualties. Similarly, knowing of the pos-sibility of an automatic 60-day cut-off could encourage anenemy to fight on in an effort to achieve a political victory.

Foreign policy consequences from congressional actionsare not imaginary horribles. The 1975 Soviet air lift toAngola was resumed within days after congressional actionprohibiting any U. S. involvement. And the North Viet-namese regular army invasion of South Vietnam-after theconclusion of a solemn agreement ending the war-tookplace only after congressional action forbidding future directU. S. involvement.

A recent study by Robert F. Turner of the experienceunder the resolution, The War Powers Resolution: ItsImplementation in Theory and Practice (1983), suggeststhat in some cases the resolution may reduce deterrence andenhance the risk of war. It should be remembered in eval-uating the War Powers Resolution that Congress has consid-erable checks not dependent on the resolution, including theability to terminate major hostilities abroad by normal legis-lative process.

Given these questions about the War Powers Resolution,what might be done to end the confrontation, recognizingthat members of Congress are required, as is the president,to pursue honestly the appropriate meaning of separation ofpowers and that what is needed is not a "victory" for eitherbranch but rather agreement on practices and proceduresthat will enhance democratic consensus and effectiveness inforeign policy? Generally, cases arising under the WarPowers Resolution, as in other sensitive areas of foreign'policy, are likely to be treated by the courts as presentingnonjusticiable political questions and thus not subject tojudicial review.

There is, however, another alternative fair to bothbranches and, I believe, more likely to produce results lead-ing to a broader consensus and a more lasting balance. Thisis the creation of a joint congressional-executive commis-sion to study implementation of separation of powers in for-eign policy. This commission could make recommenda-tions on all the alternatives, including enhanced reliance oninformal guidelines and procedures as well as reviewing theWar Powers Resolution.

To be balanced, this commission should have half itsmembers selected by Congress and half by the president.Rather than seeking to force congressional views of theappropriate balance, this commission would reflect theviews of both branches in what has been a continuingdebate. It also would serve a broader national goal in exam-ining the limits of appropriate congressional micro-manage-ment of foreign policy. The war powers controversy is butone piece of this broader mosaic that may be one of themost important and enduring issues in American foreignpolicy.

(John Norton Moore is Walter L. Brown Professor ofLaw at the University of Virginia and chairman of theABA Standing Committee on Law and National Security.Formerly he served as counselor on international law tothe Department of State and as a U.S. ambassador to theLaw of the Sea negotiations. The views expressed are hisown.)

I Harry Mattison/Time Magazine

Tipson

to give constitutional significance to congressional inaction:the president's authority to act in emergencies simply runsout in 60 days if Congress does nothing. That consequence,of course, underlies the entire theory of emergency author-ity.

In practice, however, this situation is not likely to arise.Because of the "priority procedures" mandated by the reso-lution for both authorizing legislation and concurrent reso-lution vetoes, as well as the high visibility of such issues inthe Congress, the 60-day provision is more of a deadline forcongressional decision than for presidential authority. Inmost cases, Congress can be expected to act affirmatively,either to authorize the operation in question or to direct itstermination. If it should ever come down to a situation inwhich the time simply runs out, Congress would probablynot be well advised to-rely on its inaction to enforce itsviews-at least as far as judicial resolution is concerned. Inother words, the constitutionality of Section 5(b) may de-pend on the circumstances in which it comes into play-ifever.

But even if the resolution is constitutional, is it enforcea-ble? In the case of a clear confrontation between the presi-dent and the Congress, the Supreme Court would probablyagree to resolve the matter. But if the Court were unwillingto do so-and under some circumstances it probably shouldnot-Congress would have little choice but to enforce itsposition through the funding process. In my view, fundingrestrictions should be the last resort, rather than the pre-ferred method, for ensuring congressional control. They aretoo clumsy and indirect to assure a meaningful and con-structive influence on policy.

The preferable situation, however, is one in which suchconfrontation is avoided through congressional-executiveagreement on a workable, constitutional procedure. Thecontinued pursuit of such agreement is the highest respon-sibility of both branches.

(Frederick S. Tipson is on leave as chief counsel to theSenate Foreign Relations Committee. He is a visiting sen-ior fellow at both the Georgetown Center for Strategic andInternational Studies and the Center for Law and NationalSecurity at the University of Virginia. The views expressedare entirely personal.)

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