05 Nov Is an Amended War Powers Resolution Part of the Answer?
I don’t think so but some people do. Here’s a bill that would fix the well-known operative flaws of the WPR. The measure corrects the WPR’s failure to include attacks on US armed forces and citizens outside the United States among those situations in which the President can unilaterally initiate hostilities (compare the bill’s section 3 to the WPR’s section 2) at the same time that it purports to shut the door on any other uses of force. It would also repair the 30-day trigger mechanism so that the clock starts ticking with a presidential report of the use of force (a drafting error in the WPR that gave presidents wiggle room on how long they could operate without specific legislative authorization), and give legislators standing to challenge executive branch action as noncompliant with the measure.
Something like this wouldn’t be worth paying much attention to, except that the principal sponsor is a Republican (Walter B. Jones of North Carolina, with an assist from guerilla presidential candidate Ron Paul and some bipartisan support from among others GW lawprof Peter Raven-Hansen). George Will trained some favorable column inches on it in yesterday’s WaPo. The apparent objective (though not mentioned in the sponsor’s press release) would be the possibility of military action against Iran.
The WPR has been an obvious constitutional failure, the last stake supplied by the Clinton Administration’s clear refusal to comply with it in the Kosovo campaign. (The proposed bill goes under the heading of the “Constitutional War Powers Resolution”. Seems to imply something about the original, doesn’t it?) Drafting fixes aren’t going to make it any better. There would come a moment in some future Administration (sooner rather than later, Democrat as likely as Republican) in which the use of force without authorization would make sense (think minor strikes rather than major efforts—like lobbing a few cruise missiles in some strongman’s direction), would be undertaken and then accepted by Congress and other constitutional actors. The new law would end up just as dead as the old one.
In the meantime, can this President be so deluded as to think he has the political or constitutional capital to take military action against Iran without clear bipartisan support?
It’s very common to assume that the “WPR has been an obvious constitutional failure.” But really, when you think about it, have there been any hostilities since 1973 that have lasted more than 90 days without congressional
authorization (as in Korea and post-Tonkin-Gulf-repeal Cambodia)? If I’m not mistaken, the only possible candidate is the Kosovo bombing. But in that case, not only did the Clinton Administration not “clearly refuse to comply”; to the contrary, it assumed that it was bound by the WPR, and argued at great length that Congress had in fact authorized an extension of the conflict. Of course, that conclusion was quite contestable, and folks might disagree in good faith with OLC’s analysis. But it’s notable that Clinton did not assert authority to continue without congressional approval.
Eh, the WPR is best left to moulder in its shallow, irrelevant grave.
Marty, Thanks to the pointer to the memo. Two questions: 1) Did President Clinton ever acknowledge the constitutionality of the WPR’s termination clause? 2) Doesn’t the memo’s approach effectively gut it in any case, by turning it into little more than a rule of construction respecting appropriations measures? The memo’s standard would be satisfied wherever an appropriation were specific to an operation, right — and given Congress’ well-know incapacity to turn off the funding for ongoing operations (witness everything Iraq), would mean no really possibility of reversing the Preisdent’s action, exactly what the WPR was intended to remdey in the first place.
To apply a common blogospheric device, “short answers to simple questions”:
In the meantime, can this President be so deluded as to think he has the political or constitutional capital to take military action against Iran without clear bipartisan support?
Yes, he can.
Peter: No, unlike Carter, Clinton never came out and specifically affirmed the constitutionality of section 5(b). We were assiduously silent on the question (although, FWIW, I don’t think it’s a close call — it’s easily constitutional). As for your other question, I don’t think I can improve on the opinion itself: Some have argued that appropriations, regardless of how specific they may be with respect to ongoing war efforts, should not be interpreted to authorize continuing military operations because those appropriations could just as easily be understood as providing resources for men and women already in combat, simply to ensure that they do not suffer as a result of a disagreement between the Executive and the Congress regarding the wisdom of the deployment. See, e.g., Mitchell, 488 F.2d at 615 (declining to decide whether President Nixon had exceeded his constitutional power on political question grounds, but noting that, “in voting to appropriate money or to draft men a Congressman is not necessarily approving the continuation of a war no matter how specifically the appropriation or draft act refers to that war. . . . An honorable, decent, compassionate act of aiding those already in peril is no proof of consent… Read more »