Fixing the War Powers

• Author: Major Michael P Kelly
• Pages: 02

1. Introduction

   Shortly after the Vietnam War ended, Congress passed the War Powers Resolution (WPR),' a unique and enduring legacy of Vietnam and the besieged President who ended that war An expres8 purpose of the WPR is to ensure the "collective judgment"2 of both the executive and legislative branches with respect to the use of force. The WPR was an apparent attempr to settle this constitutionally enigmatic mea and to forge a new war powers partnership.

   The WPR's numerous defects are still the object of lengthy, largely unproductive, legal debates. From an experiential standpoint, eighteen years have documented the WPR's failures. The modus operandi of presidents perSists-Unliatera11y deciding to useforce and then execating the operation-while Congress debaces and resigns itself to a fait accompli. The constitutional imbalance deepens with each SUCC~SIIY~use of force. And instead of forging a partnership, the WPR has prevented a heahng of the divisiveness between the two political branches

   The proper way to f u America's war pawen is to repeal the WPR immediately and to return to the conceptual model for the war powen developed by the framen of the Constitution-but only to the extent that historic practice has ratified this conceptual model. The framers consciously constructed an extremely general model for the war powers based 0" their historically limited perspective. They anticipated that practice would provide the specifics. The framers expected a joint, cooperative exercise of the war powers-not exer-cise by one branch. The framers knew that they could not have the most efficient government possible, so they instead created the best possible government that had a realistic chance of being ratified

   'Judge Advocate General's Corps, United Stales Army Currently assigned to the Office of the Staff Judge Advocate, 25th Infantry Diu~sbn, (Irght) and United State8 Army Hawaii. Schofield Barracks, HI B.S , 1880, Uruted States Mihtary Aeademy, J D 1087, Kmuerrily of Calllornia st Dad% LL M , 1802, The Judge Advocsle General's School, United Stater Arm) Formerly -wed Lo the Office of the Staff Judge Advocate, 5th Infantry Dlviiion (Mechanued) Fort Polk, LA This article is brred onaurittenthesisdigsertarionrhat the auihorsvbmnfed tosatisfy, YIP^. the Master of Laws degree req~lrernenti for the 40th Judge Advocate Officer Graduate Co"rse

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   They worked under tremendous time pressure,3 and never expected their work to stand without amendment. They fully intended to create an adaptable government that could function in the context of an ever-chanipng world.4

   The world has experienced dramatic, fundamental changes especially in the last few years, and change likely will Contmue. The United States probably will attempt to maintain its leadership within this "new world order."6 Before the United States pursues thls cmcia1 role, however, it must carefully consider the vitality of its own procedures for developing and executing national security policy and foreim policy, which is a broader, yet totally interrelated, area.0 An honest examination reveals that deficiencies exist, especially with respect to the war powers. In a complex world of constant change and ambiguous threats, the political branches must be partners in a well-defined, cooperative, and workable war pawen arrangement.'

   11. The War PowersResolutian: Was "Collective Judgment Effectively Restored?

   1. The War Powers Resolution in an HiStorlcal Contezt

      By the early 1€!70s, Congess's discontent with presidentla1 usurpation of the war powers was several decades old. After the close of Amenca's last declared war, World War 11, the pattern of nearly total congessianal deference to executive initiative began to dissolve For years this discontent was largely individual rather than institutional, exemplified by the failed attempts to pass war powers legislation and to check other executive powers over national secu-rity.B In November 1973, Congess passed the WPR over President

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      19931 FIXING TWX WXR POWERS 86Nixon's strongly worded veto.B At the time of passage, this appeared to be a bold reassertion of Congress's constitutional war powen. In retrospect, it is obvious that the WPR was the result of reactionary politics rather than constitutional principle

      As an institution, Congress rarely commits strongly to any ape. cific position, and passage of a law over an executive veto is rare. The WPR passed at a pingular moment m American history. American involvement in the unpleasant and unsuccessful Vietnam War was just ending, and the President was under siege. These unique historical forces gave Congress enough resolve to overcome its normal institutional inertia regarding the war powers.

      1. Nbn's War-Political realities played a role in Congess's attitude toward the Vietnam War and subsequently in the passage of war powen legislation. By late 1968, most Americans had renounced the Vietnam War.loMuch of modern politics is driven by public opinion. Consequently, many of our legislators began trying to distance themselves from the increasingly unpopular conflict. The election of a Republican President in November 1968 made the task easier for the msjority in Congress; the Democrats no longer had to choose between party loyalty and the public's increasingly clear mandate to terminate the conflict.11

      The public's short.term memory helped these congressmen in their quest to transfer blame to the President. In 1964, Congress had passed the Gulf of Tonkin Resolution with only two dissenters in the Senate and none in the House. This resolution gave the President nearly total discretion to initiate war.12 Congressmen later dis- *The WPR does naf stand alone Dun* the mrd-lQ70s. Cane- parsed severd laws that procedurally affected the execuflve'9 rather free management of forem polley For example, the Senate eslnbhshed a itandlng cammlttee to ovenee Central Intelhgence Agency OPerBfIoni, the International Secunfy Aps~cance and Arms ExportConiralActpmedm 1876affeetedmllitaly~ea,and1U.S.C 5 112(b)(SuppV 1975) affected the ma*ing of exe~ufwêCeemenrs See Thomar M Franek, AJtm

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      claimed their earlier role in leading the nation into battle. They claimed that the ?bnkin Reoalutian was not a "declaration of war'' and that it had not been intended to give such discretion to the President.13 By 1973, they pointed to a power-usurping President asthe prime offender. With a relatively clear conscience, cangressmen-especiaily new anivals-could demand passage of war powers legislation to prevent future instances of unilateral presidential war-making."

      After taking office m 1969, President Xuon committed a series of political blunders with respect to Vietnam. The mistakes seemed to Stem from an overconfidence in his ability to impose his will on an increasingly hostile pubhc and Congress. In Apni 1970, when the public wanted and expected de-escalation of the war, American forces invaded neutral Cambodia. This unexpected expansion of mil. itary operations exacerbated the tense domestic situation 15 In February 1971, the President agreed to provide combat SUPPOR activities for South Vietnam's unsuccessful invasion of Laos. This violated, or came very close to violating, prior congressional appropriation limitations. 16 And finally, President Nixon's contemptuous treatment of the Mansfieid Amendment-the Senate's first attempt to end the war-helped to solidify congressional antiwar Sentiments.17

      By the summer of 1971, publication of 7716 PentagonPaperslB had begun. This work revealed how several administrations had withheld vital information about Vietnam from the public and from congressional decision-makers 18 President Gixan's defiant, almost arrogant, handling of the Vietnam conflict m the face of known public dissent and waning congressional SUPPOI? sealed his fate. He

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      10931 FIXING THE WAR POWERS 87

      became the necessary political "scapegoat." It was ail too simple far Congress to convert the Vietnam War into "Nixon's war.''zo

      2. The Besieged presihy: 1973 -From the heights of an ovenuhehmg re-election victory in November 1972, startling reve-lations concerning Nixon's abuse of power and privilege led to a precipitous fall in public support throughout 1973.21 The Watergate scandal began the presidential fall. Watergate was continuously in the news and therefore before the public. President Nixon's early denial of any involvement, and his attempts to suppress relevant informationz2 and hamper the ever-widening investigation, undermined his credibility. The "Saturday Night Massacre" evinced his willingness to abuse presidential p0wers.~3 In July and August 1973, the...