'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.

BOOK / RICHARD E. SINCERE JR.
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.

'Politics and Government in African States, 1960-1985'

This review originally appeared in the Washington Times Magazine on Monday, August 17, 1987.  This version was published a few weeks later in the New York City Tribune, on Wednesday, September 23, 1987. The bio-line is slightly inaccurate; I had finished my degree at the LSE in June 1987. This article must have been submitted to the newspaper before I left London but was not published until after my return to the United States.

RICHARD SINCERE
A Hefty But ‘Uneven’ Compendium of African Issues

Politics and Government in African States, 1960-1985, eds. Peter Duignan and Robert H. Jackson, Stanford, California, Hoover Institute Press, and London, Croom Helm, $36.95, hardcover; $20.95, paperback 434 pp.

In his comic novel Scoop, Evelyn Waugh describes the foreign editor of a major newspaper searching frantically and unavailingly on a map of Africa for the country of Ishmaelia, so that he can send a war correspondent to cover the revolution there.

Things have not changed much. In many American minds, the map of Africa stretches from Cape Town in the south to Pretoria in the north. The rest of the continent, because it tends to be forgotten by the major media, remains unknown to the American voter— and to students, businessmen and even political activists.

To be sure, a few rare instances of trouble in Africa outside South Africa have reached our television screens— Idi Amin’s hideous Uganda, the genocide in Ethiopia, ethnic strife in Nigeria — but these events merely scratch the surface.

In the 25 or so years since most of its countries became independent states, Africa has been a cauldron of political activity: exciting, disgusting, heartening, backward, progressive, tyrannical, and benign.

For these of us concerned with civil rights, personal dignity, and human freedom, most of Africa since 1960 presents a sad case. One-party systems and military dictatorships are the rule; ethnic conflicts tear many African states apart; governments teem with corruption; negative growth rates and reduced standards of living are the product of centralized planning in a socialist mold.

This hefty volume examines about half of the states of Africa. As might be expected in a multi-author work, the result is uneven. Some chapters, for instance, are quite good on colonial history and weak on current economics; others provide nearly no background on the colonial period yet give detailed accounts of recent political developments.

The book, unfortunately, has many faults. It lacks maps, even a single map of the continent; its many references to geography had me jumping up regularly to consult a wall map. Moreover, nowhere in the book are any of the nine authors identified.

It is apparent also that the Hoover Institution Press lacks a good copy editor — the volume suffers from numerous typographical errors, inconsistencies and impenetrable sentences that diminish readability and reduce credibility. (This, despite a long production process. Some of the essays indicate that they were written in late 1984, others in mid-1985, with publication late in 1986.)

Despite its flaws, this is a volume worth consulting. Once one had been warned of the potential inaccuracies -- and the fact that several of the essays have been overtaken by events, it is possible to find a wealth of information about and interpretation of politics in Africa over the past quarter century.

Political developments in individual African countries can be remarkably similar or remarkably different. All (except Ethiopia and Liberia) were colonies of Europe. All (except Somalia) are multinational states, with multiple languages and dialects, various religions, competing customs and legal traditions and burgeoning populations. All (except South Africa and, to some extent, Zimbabwe), are non-industrialized, economically underdeveloped, and lacking the capability to feed themselves.

There are some success stories. The Ivory Coast, Senegal, and Kenya have been politically stable and have to one degree or another been able to press ahead economically.

But as long as other African states persist in statist “solutions” to their economic and demographic problems, such as forced collectivization of agriculture, stagnation and poverty are inevitable results.

It took Europe and North America hundreds of years to rise from the grime and contagion of the Middle Ages to the political stability and economic prosperity they enjoy today. It was surely too much to expect that the fledgling African nations could do the same in less than a generation.

What the next 25, 50, or a hundred years will bring is anybody’s guess, but the story of sub-Saharan Africa since independence cautions us to be pessimistic.

Richard Sincere is currently pursuing post-graduate studies at the London School of Economics and Political Science as a Richard M. Weaver Fellow.