John Ely, war, and responsibility.

• Author: Sofaer, Abraham D.
• Position: Professor, University of Miami School of Law - Testimonial

We meet to celebrate John Ely's life and work. No greater tribute is possible for a scholar, I know John would agree, than a meeting of other scholars to discuss his work and to mark his contributions.

I was fortunate to meet John Ely early in our professional lives. He was one of several outstanding young lawyers I met while clerking in Washington, D.C., between 1965 and 1967. The Vietnam War drew us together again some years later, as we both worked on legal issues related to that war. We rarely met, but I followed his work, and he mine. In 1994, after he had published War and Responsibility, (1) the University of Miami School of Law held a symposium on the book, in which I participated at John's invitation. My paper praised John's effort to get Congress to act more responsibly on war-related issues, but it criticized John's recommendations on how to bring about that result. (2)

Today, I plan to examine what has happened since then and why I believe that, although John's specific proposals have failed to garner support, his ultimate aims and the values he sought to advance are closer to realization thanks to the debate and activities he helped generate.

Ely's contribution in War and Responsibility was his call for a more responsible political process with respect to the decision to go to war. He was dissatisfied with the performance of all three branches of the U.S. government on war-related issues. On the most important of these issues, Ely and I are in complete accord: Congress has the ultimate power over war, with exceptions based on the President's obligation to defend the United States and his power over the conduct of approved military uses of force. It follows, therefore, that Congress has a right to be informed of military actions, both overt and covert, so that it can exercise its related constitutional powers. The War Powers Resolution (WPR) has several provisions that advance these principles of consultation and information and that help ensure that votes are taken on resolutions advanced by members of Congress. (3)

Ely and I disagreed, however, over what the President is lawfully entitled to do in the absence of clear congressional approval. He wanted to stop Presidents from using force not only when they act secretly or against the expressed will of Congress but also when they act without very specific legislative authorization. He took the view that the WPR is constitutionally valid, including its provisions declaring that the President has no power to keep U.S. forces in hostilities beyond a sixty-day period without legislative approval specifically stating that the President may use force in that situation and that the approval is intended to constitute authority under the WPR. (4) Since the WPR was adopted over President Nixon's veto (issued when he was on the brink of impeachment), every President has regarded this aspect of the WPR as unconstitutional, and several have disregarded it without legislative sanction. (5)

The remedy for this situation, Ely believed, was a new law that required courts to declare whether the President had complied with the WPR in a given situation, or with the even more stringent standards that Ely recommended be adopted. (6) He agreed that it would be inappropriate for the courts to enjoin the President in such situations but felt that declaratory judgments would either shame the President into compliance or shame Congress into using its powers to force compliance. (7)

Why Ely thought Congress would be more likely to behave responsibly by having the federal courts make such declarations is unclear. Congress does not need judicial declarations when it decides to prevent the President from taking a particular course; it has ample power to stop a President, as it has often demonstrated. (8) Where Congress has been made aware in advance of the President's intentions regarding use of force, and especially where Congress has supported the President's program with funds or other actions, judicial declarations of the obvious fact that the President has failed to satisfy the technical requirements of the WPR are unlikely to galvanize Congress to take additional action. Such declarations would be especially meaningless if the courts are restricted to judging the President's compliance--as Ely wanted--rather than being asked whether the President was acting legally even if without formal WPR approval.

NATO's intervention in Kosovo illustrates these issues. By March 24, 1999, when President Clinton approved the use of force in Kosovo in joint operations with NATO, Congress was well aware this action was likely. Secretary of State Albright had threatened to use force against Serbia some ten times if President Milosevic failed to...