A paper tiger with bite: a defense of the War Powers Resolution.

• Author: Weiner, Michael Benjamin

ABSTRACT

The War Powers Resolution (WPR) has led a beleaguered existence. Since its enactment in 1973, it has been labeled ineffectual and useless. This Note proves, however, that to review presidential unilateral uses of force since 1973 is to find a spirit of compliance with the WPR, as these uses of force have been characterized by their brevity and their lack of spilled U.S. blood. While minor departures from the WPR's black-letter requirements are conceded, none of these uses of force have developed into, or even resembled, Vietnam-esque quagmires. As a result, this Note contends that the WPR has had a positive practical effect on the implementation of presidential unilateral uses of force. The Note concludes by asserting that the welfare of the United States is endangered, not by the unilateral uses of force that the WPR seeks to remedy, but by the congressionally sanctioned uses of force that, in reality, place no limit on Executive power.

TABLE OF CONTENTS I. INTRODUCTION II. THE WAR POWERS RESOLUTION A. The War Powers Debate B. War Powers in Practice C. The WPR: Congress's Embattled Response III. THE WPR IN ACTION: A PAPER TIGER WITH BITE A. Grenada B. Lebanon C. Libya D. The Persian Gulf E. Panama F. Somalia G. Kosovo IV. CONCLUSION: THE EXONERATED WPR AND THE WOLF IN SHEEP'S CLOTHING A. Congressional Authorizations for the Use of Force: The Wolf in Sheep's Clothing B. Recommendations for Containing the Man-Made Wolf I. INTRODUCTION

The War Powers Resolution (WPR) has led a beleaguered existence. Since its enactment in 1973, it has been deemed ineffectual and useless. (1) Such criticism can be found in the annals of the legal academy, (2) as well as at the highest levels of U.S. government, where no President has ever acknowledged the WPR's constitutionality. (3) This Note, however, asks the reader to look at the WPR with fresh, almost non-legal eyes. In a sense, think of Youngstown Sheet & Tube Co. v. Sawyer (4) and be less like Justice Black (5) and more like Justices Frankfurter, Jackson, and even Chief Justice Vinson. (6) Stated in a different fashion, this Note takes a functional rather than formalistic approach. Thus, with reference to the post-1973 presidential unilateral uses of force, consider what was happening in a grand sense: Was the Executive galloping around on a white horse with his hand inside his breast pocket or was he furthering his policy objectives while taking pains to avoid another Vietnam?

If one judges post-1973 presidential unilateral uses of force to be the latter, instead of the former, one should ask another series of questions: Did the piece of legislation explicitly requiring the Executive to receive authorization for the use of force spur the Executive to act differently? Did that piece of legislation spur Congress to speak on the subject? Did the sixty-day "blank check" window have an effect on the Executive's plans? Finally, was there more communication between the political branches with reference to any such uses of force than before that legislation's enactment?

Since the answers to these questions must be answered affirmatively, this Note concludes that the WPR has had a meaningful effect on the implementation of presidential unilateral uses of force. As this Note demonstrates, to review the presidential unilateral uses of force since 1973 is to find a spirit of compliance with the WPR, as these uses of force have been characterized by their brevity and their lack of spilled U.S. blood. (7) In sum, none of these uses of force have developed into, or even resembled, Vietnam-esque quagmires. (8)

With the exoneration of the WPR complete, this Note concludes by asserting that the nation's welfare is endangered, not by the unilateral uses of force that the WPR seeks to remedy, but by the congressionally sanctioned uses of force that place no limit on Executive power. To recall Youngstown, this Note stresses that there is much to gain from keeping a warring Executive in what Justice Jackson would call a Category III situation, where the Executive is solely dependent on his own inherent authority, as opposed to allowing the Executive to function in a legal realm where his actions enjoy the highest amount of deference, which is Jackson's Category I. (9) For when Congress abdicates its power to the Executive, it is Congress that creates a de facto monarchy that ties the nation's prosperity to the wisdom of one person.

Part II of this Note includes a brief description of the war powers debate, an overview of how that debate has translated into reality, and a description of how Congress tried to reshape the debate with the WPR. In Part III, this Note observes how the WPR has performed in practice by surveying and analyzing presidential unilateral uses of force since 1973. Finally, Part IV draws attention to the true danger posed by the U.S. constitutional arrangement of war powers and concludes with a series of recommendations to remedy the problem.

2. THE WAR POWERS RESOLUTION

   "War is hell." (10) No one doubts the veracity of General Sherman's well-known adage. Cognizant of this reality, the Framers sought to move away from a monarchial decisionmaking model when allocating war powers in the Constitution. (11) Instead of giving strategic and tactical control, namely the powers to declare war and to act as Commander in Chief, to one individual, the Framers apportioned these powers between two elected branches of government. (12) This was a deliberate shift from the Articles of Confederation, which vested all such power in the Legislature. (13) Accordingly, the Constitution provides Congress with the "Power ... To declare War ... To raise and support Armies ... To provide and maintain a Navy ... [and] To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." (14) The Executive, on the other hand, is entitled to be the "Commander in Chief of the Army and Navy of the United States ... [and] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties." (15)

   1. The War Powers Debate

      The deeper meaning of these enumerated powers has been contested since the nation's infancy. (16) The debate is framed by supporters of two dialectic positions: those who believe that the Constitution empowers Congress to be a major player in the foreign affairs realm, and those who argue the opposite, that the Constitution clearly favors the Executive.

      This debate, which has been thoroughly covered elsewhere, (17) is eloquently captured in the vigorous clash (18) between Alexander Hamilton and James Madison over the constitutionality of George Washington's unilateral issuance of the 1793 Neutrality Proclamation. (19) Hamilton, writing under the pen name Pacificus, defended Washington's action by stating that:

      [The Proclamation] serves as an example of the right of the executive, in certain cases, to determine the condition of the nation, though it may, in its consequences, affect the exercise of the power of the legislature to declare war. [It] deserves to be remarked, that as the participation of the senate in the making of treaties, and the power of the legislature to declare war, are exceptions out of the general 'executive power' vested in the president; they are to be construed strictly, and ought to be extended no further than is essential to their execution. (20) Madison, on the other hand, writing under the name Helvidius, responded (21) by saying:

      [I]t must be evident, that although the executive may be a convenient organ of preliminary communications with foreign governments, on the subjects of treaty or war; and the proper agent for carrying into execution the final determinations of the competent authority; yet it can have no pretensions, from the nature of the powers in question compared with the nature of the executive trust, to that essential agency which gives validity to such determinations. (22) To Madison and his followers, disregarding such a distinction would be "in theory ... an absurdity--in practice a tyranny." (23)

   2. War Powers in Practice

      Washington's issuance of the Neutrality Proclamation (24) started the trend of Executive domination over the decisionmaking process as to whether the nation should use military force to further its political objectives. (25) It also set the stage for more brazen presidential initiatives: John Adams soon after brought the nation into its first undeclared war in 1798, (26) and Thomas Jefferson initially took unilateral action in extending the Navy to confront the Barbary Pirates in 1801. (27) Indeed, these initiatives lent considerable support to John Marshall's statement, "The President is the sole organ of the nation in its external relations." (28)

      This trend can be explained by the practical advantage the Executive branch has over the Legislative branch: It is more efficient for a small, relatively homogenous group to reach a decision than it is for a large, diverse group to reach one (29)--a principle required to address the urgent questions that are necessary in foreign affairs. (30) One commentator explained the institutional relationship between the branches by noting that, while Congress can announce foreign affairs policy, it lacks the institutional framework to implement that policy. (31) Thus, in practice Executives mainly have been the actors and Congresses the reactors. As a result, it should be no surprise that in the nation's brief history "presidents have in fact deployed U.S. armed forces beyond the U.S. borders hundreds of times without authorization or subsequent ratification by Congress, and in many of these cases they engaged in 'hostilities' of varying significance, intensity, and duration." (32)

      Allowing one person to steer the course of U.S. foreign policy is, however, a risky proposition. That the United States has historically condoned such presidential initiative may just be a testament to the country's good...