The IVar-Making Process

• Author: Captain John C. Cruden
• Pages: 01

I. INTRODUCTIOS

The progressive growth in the power and prestige of the Presidency, especially in the area of foreign relations. has been perhaps the most notable feaNre of American conrtirutional development. Beginning with Jefferson's use of the Savy agaimr the Barbary pirates in 1801, debate has raged over the limitations an Presidential authority to commit troops to hostilities without prior con ressional authorization. Notwithstanding the constant uestioning of what, if any, unilateral war power the President actus$ parserser, American chief executives have infrequently sought approval from Congress before exerting national force. This steady aggrandizement of power, expanded dramatically by the twentieth century Presidents, became particularly suspect during the war in Southeast Asia.

Heralded as the answer to future Viernams, the War Powers Resolution of 1973 was introduced amidst the events of Watergate, considerations of presidential impeachment, and in the aftermath of the most unpopular war in the history of rhe United States. Three years of debate in Congress elicited widely divergent views concerning the wisdom of limiting the President's military prerogatives, and

'This anide is a eond~nxrrion 2nd rdqmon of I ihcrir prewnted to The Judge Adrmcc Gencmi'i School, US Amy. whde the surhar was a member ofthC Zld Judge Advocate Officer Advanced Class The opinms 2nd E O ~ C ~ Y S ~ N

exprcsued herein arc t h w of the iurhor and do not ncces8rily reprcwnr the views of The Jvdgc Advocate Gcncri'r School 01 my orher governmenril ~gmcy A general discussion of the nmonri imudry upcce of the w ~ r powerr iegirlrrion, which ilrhough beyond the scope of this uricie, h a bccn provided in iudirvirvd formnr M.

Bsdsmi, I. Cruden & D. Gmham, The War Powers Act and Nsrionai

Security. rrriirbk from Tho Judge Advmirc General's Schoal, US Amy. Chrrlmrvilb. VA 22901.

** IAGC. US Amy. B.S. 1968. United Statu Uilirrry Academy; J.D., IW4, Unlvenity (If Ssnrr Clam; M.A.. 1971. Univrrriry of Virginin. Member of rhc Bar of Cdifornis. The author would like to expren hir ~ppreei~rian

ID t i folloaing

individuals for their W~SIP~CC in rhc prepamtion of this utide. Dean Rusk. famcr

Sccrervy of Sna. blond Zinc E. Finkelstein. Office of rho Chmmn of the Joint Qlirfs of Srrff. and Cnprsin David E. G m h m lnrerniriond L w

Division. The

Judge Adrocrrc Gencnh Schoal.

a score of conflicting proposals acre introduced m the House and Senate. Reconciling rheir competing approaches toward Presidential powers, the legislators approved a campromise resolution which passed over an angry reto by President Sison on h'arember 7 , 1973.1

In subsrance. the \Tar Powers Act requires thar the President borh consult with Congress before inrroducino milimrv forces into actual or potentnl conflict and report the psnfi~ation oi such acrmn within forty-eight IIOUIS of deployment. To allom rapid response to emergency situations, the President is allowed to commit combat mops into hostilities a-ithout congressional authorization, bur such combat must end wthm sixty dars, with a single thirtv-day extension if the President certifies in w n h g that the exensmn IS necesrar?. for the safety of hmerican combat forces. Even during this ninery-day period, Congress may in accordance with the Act recall all troops by passing a concurrent resolution. nor sublect to the President's reto, by a simple maprity of both Houses.

Does the \Tar Powers I c t fulfill its diafters'inrenr by resroring the war poveri allegedly usurped by past Presidents-or IS I[ merely hartatorv: Is the Act a rational limitation on the expansive powers of the President!-, or is it an emotional response to the abuses of a particular Presidenr: To answer these questions it a.dl be nrcciiary to examine the constitutional and historical bases for the exemse of war powers, the political enrmnment v hich contributed to the passage of the Act, and the legislative interpretation of the Act's language.

Following the somewhat abstracr section-by-section analvsn of the key prorisiani of the Act. it is necessary to turn to rhe effect of the .ict in practice. Since the passage af the \Tar Powers Act in lat? 1973, four reports hare been rendered bv the President to Caneresr to explain military action. .ilthough each of these reporrs -all-related to the fall of Cambodia and South Vietnam-has stirred considerable controversy. they vividly illustrare the application of the \T-ar Powers Act to actual operations. \loreover, there reports pro-vide raluable precedents by which one cdn test rhe explanations of certain of the A d s proiisiona provided in this arcicle.

In the final analvsis, rhe \Tar Poirers Act 1s certainlv the mosr ex- los sire statute of ;he decade. Ererv milirarv owration. e ~ e w

U.S.

treaty, in fact, nearly every aspect of United States national security policy is touched by this critically important document. XVhile it is true that this Act is symptomaric of the schism between Congress and the President en indered bv Vietnam, it is equally true that this Act is the first step forward b

11. \VAR-\IAKISG POLVERS: COXSTITUTIOSAL LANGUAGE, FRAMERS' INTENT AND EXECUTIVE PRACTICEIn his message to Congress accompanying the veto of the IVar Powen Act, former President Nixon warned that the Act was unconstitutional, claiming it would "take away, by a mere legislative act, authority which the President has properly exercised for almost 200year^."^ Determining the proper allocation of war powers under rhe Constitution is not an easy task. As hlr. Justice Jackson wryly observed, the constitutional basis for war-making authority "must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh."a Despite two centuries of scholarlv speculation complemented by the plethora of recent articles on Presidential powers, leading historians, political scientists. and constitutional experts continue to spark controversy with the diver ent views? Nevertheless, to establish a foundation upon which to jdge both the wisdom and legality of the \Tar Powers Act. it is important to first examine the historicai arguments ret forth in sup-part of both congressional and executire mar-making authurity.

2R. hixon, Veto of War Paiiers Roiolurion (Om 24, 1971) 3n 9 W'rr~ii C ~ ~ U I I O X

OP Pariiomn~r Doc~vmrr 1.0,

41, IC 1281-863 Younqsrown Shcet 2nd Tube Co. Y. Siwyer, 141 U.S $79, 614 (1952) IJwkmn, I., C0'"c""ing)

Any analysis of the proper position of mar powers in the constitutional framework requlres a series of eraminatmns. Initially, the explicit constitutional provisions granting war-making powers must be analyzed. Should the provisions themselves fail to satisfactorily delimit the proper allocation of responsibilitv. the framers' intent must be examined in an effort TO uncover hidden meaninp or to clarify ambiguous terms. Finally, the issue must be placed in its proper historical and judicial peripecrive. It is this three stage approach-constitutional language, framers' intent, and historical perrpecrire-that mill be util&d to determine the allocation of war powers under the Constitution,

A. CO.VSTITUTIO.h'AL LAXGCAGE: "CONGRESS SHALL HAVE POWER, , , TO DECLARE WAR"

Xlmdful that the failure of the Articles of Confederation stemmed from the absence of a central authority. but fearful of unchecked war-making powers such as those possessed by English Kings, the delegates to the 1787 Constitutional Convention dealt with a broad range of war-related authority in the first article of the new Constitution. Section 8 of that article expressly grants Congress er-tensive powers in the realm of national defense.& In contrast to the war powers of Congress, specifically listed in the first article, the drafters' second article designated the President simply by position as "Commander-In-Chief of the Army and Navy of the United States." Advocates for the congressional exercise of war powers stress the Article I specific grants of authority, particularly the power

5 To "pmtde for tho cornmn defense". "rcgularc Commerce with foreign Naoonr". "define and punish Pmcier and F~lan~eicommitted on the high Soar m d

for csrqing mto Execution rhe foregoing Powers, and 111 other Poueri veirad byThis Conidmuon in the Govrrnmeni of the Unired Srares. 01 in m? Depm:monr 01C5ctr rhcrrof " US. C a w an. I. 8.

01'5 Cmrr art. 11. ! 2 . Samuel P Hvntinpn hnr pointed out char rhr

Comnander-m-Chief c l m e is '. umpue m the Coiirirvrm in granting iurharin. m the form of an ofics Iirher rhrn m the form of a funcfm S H~\nxorov.

THE

Sorairn AID mr STATE 178 'IPI-)

"to declare war," and conclude that such language encompasses the broader ability to authorize war. Supporters of Presidential power, on the other hand, would reserve all war-making authority which is not specifically delegated elsewhere in the Constitution to the President.

B. DRAFTERS /.\'TENT EXAMINED AND DEFINED While the language of the Constitution is far from explicit in its delineation of war-making authority between Congress and the President, records of the debates in the Constitutional Convention provide some insight inio the framers' intent. In the draft submitted to the Convention on August 6, 1787, the Committee on Detail recommended that Congress be empowered "to make war,'' rather than "to declme war."' Eleven days later when the provision was debated, several alternative proposals were considered.8 Combining both congressional and presidential authority, James Madison and Charles Gerry jointly moved ". . . to insert 'declare'; striking out 'make' war; leaving the Executive the Power to repel sudden attacks."' Mast scholars agree that Rufus King's arguments in support of the Gerry-Vadison amendment contributed significantly to its adoption?0 The Massachusetts delegate urged that the new wording

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