Tuesday, January 12, 2010

'The War Powers Resolution: Its Implementation in Theory and Practice'

This book review appeared initially in the New York Tribune on Monday, September 3, 1983.

The War Powers Resolution: a siege on presidential power
The War Powers Resolution: Its Implementation in Theory and Practice by Robert F. Turner, Philadelphia: Foreign Policy Research Institute, 1983, 147 pages, $4.95.

Clement J. Zablocki, chairman of the House Foreign Affairs Committee, told The Milwaukee Journal on July 3: “The Wars Powers Resolution is uniquely crafted in that it accommodates to the reality of our modern, nuclear world. . . However, the distinctive virtue of the resolution is that it reserves to the Congress its constitutionally mandated responsibility of ultimately deciding the full legality of a presidential action. “In short,” said Zablocki, author of the 1973 law, “the War Powers Resolution is too fundamental in both its constitutional anchorage and its practical benefit to be dismantled” by the recent Supreme Court ruling that the so-called legislative veto is unconstitutional.

Inaccurate optimism
Zablocki’s assertions are wrong, according to attorney Robert F. Turner, formerly a legislative assistant to a member of the Senate Foreign Relations Committee.  Turner argues in “The War Powers Resolution: Its Implementation in Theory and Practice” that the law “is — in essence — unconstitutional, ineffective and unwise.”

Experience of the past decade demonstrates that the War Powers Resolution is not only ineffective, it is probably harmful. “Rather than fostering an atmosphere of cooperation partnership in decisions to commit U.S. forces to hostile situations, the War Powers Resolution has had the opposite effect: it pits the two branches against each other on essentially procedural grounds at the precise time that national unity is needed to deal with a potential crisis.”

The War Powers Resolution was doomed from its beginning. It was passed by a Congress that refused to acknowledge the congressional role in the conduct of the Vietnam War. Pretending that the near- unanimous vote in 1964 for the Tonkin Gulf Resolution (which granted sweeping discretionary powers to the president for prosecuting the war) never occurred, Congress gave the false impression that its constitutional responsibilities had been usurped by the president. So the law’s purpose was grounded in a historical fiction.

Nixon’s veto
Furthermore, the law’s effectiveness was immediately cast into doubt because it had to be passed over President Nixon’s veto. Sen. Jacob Javits, who co-sponsored the resolution, had hoped that Congress would work out a “methodology’’ for join presidential-congressional action in committing American troops abroad and that the president would then sign it — essentially making a compact between the president and Congress. That hope was not realized when the resolution was, for good reason, vetoed.

The War Powers Resolution requires, among other things, that 60 days after American forces are introduced into “situations where imminent involvement in hostilities is clearly indicated by the circumstances,” the president must terminate American involvement unless Congress explicity acts to continue it. Thus, vital American military aid to a nation under siege could legally be ended simply because the Congress cannot make up its mind! More important, an enemy aware of the president’s time limits could easily delay an offensive or refuse to negotiate peace terms until the 60 days of American military presence had ended.

Turner shows that the War Powers Resolution is unconstitutional for several independent reasons, including those cited by the Supreme Court in its recent Chadha decision. Among the others, Turner says, are the resolution’s provisions limiting the power of the Commander-in-Chief to “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces” [Section 2 (c)]. ‘Turner argues: “Any attempt to give legal effect to this provision would be patently unconstitutional.”

Critical omissions
The resolution fails to make the crucial distinction between the Congress’s constitutional power to declare war and the president’s powers to make war. Since after 60 days Congress must affirmatively act to authorize use of U.S. armed forces, the resolution deprives the president of "a fundamental expressed constitutional power,” something “incompatible with our system of separation of powers.”

Turner’s work is a valuable lesson in history and government. It will increase in value as President Reagan and Congress continue to dispute the presence of U.S. forces abroad, particularly in Central America, where fears of “another Vietnam” obscure the realities of the situation.

Congress and the public should take heed of Turner’s analysis, as Sen. John Tower already has, calling the War Powers Resolution “probably the most potentially damaging of the 1970s legislation” that altered the relationship between Congress and president. Tower most surely agrees with Robert Turner’s concluding recommendation:

“Now that its failure has been demonstrated and the acrimony resulting from Vietnam has receded, Congress should take a valuable first step in the direction of improved legislative-executive cooperation in this vital area — and in the process reaffirm its commitment to constitutional government — by repealing the War Powers Resolution.”

Richard E. Sincere, Jr., serves on the board of directors of the American Civil Defense Association and on the staff of the Ethics and Public Policy Center.

1 comment:

Rick Sincere said...

I am no longer persuaded, nearly three decades later, that Robert Turner's analysis was correct. I find myself more in agreement with Senator Rand Paul, who wrote in The Washington Times about the War Powers Resolution on June 15:

"Considering that many of my colleagues (and the president himself) have forgotten the war authority of the legislative branch, I am introducing legislation reiterating these powers. Our lawmakers should be on record acknowledging whether they agree that Congress, not the president, has the power to authorize war and, in doing so, recognize that Mr. Obama violated this rule."