By John Hart Ely. Princeton: Princeton University Press. 1993. Pp. x, 244. $24.95.
I approached John Ely's(1) new book with the anticipation of delight, qualified by a certain apprehensiveness. Delight because Ely is almost alone among writers in my solemn field in his ability to write with humor; indeed, he writes in a style that reminds me of the marvelous Joseph Heller. There is no reason, I suppose, for constitutional law professors to be incapable of writing amusing and fresh prose or exposing a false syllogism with the light touch of juxtaposition rather than the heavy bludgeon of irony, but how rare this is! More importantly, Ely's arguments have the satisfying feel of good craft: like his wit, his arguments are unlabored, natural, idiomatic.
Nevertheless, I also approached the book with some dread, because Vietnam is a subject that unhinges anyone born between, say, 1940 and 1960. A book subtitled Constitutional Lessons of Vietnam is apt to belong to the same genre as books like The Great War: Its Lessons and Its Warnings2 Written in the early part of this century: that is, the one thing you can expect to find is that no "lessons" have been learned because the historical experience is too close, too searing, and what you are likely to encounter instead is an account so skewed as to seem neurotic after a few decades. The strategic lesson of Vietnam is either (a) do not intervene in a civil war on behalf of a corrupt, client elite against an idealistic popular national liberation force because a Third World insurgency with the support of the people will ultimately defeat a high-tech but unpopular First World force with no moral basis in the hearts and minds of the people; or (b) do not commit U.S. forces and prestige to a remote theater without being willing to use maximum force to achieve victory quickly because popular support at home will not tolerate a long conflict in which American self-interest is vague and difficult to define. Like the differing accounts of a husband and wife after a divorce, these lessons have more to do with the guilt and trauma of the survivors than with any strategic understanding of the causes of failure. So I feared that I might read in a book about constitutional "lessons" one more repetition of the claim, so faithfully repeated by Senator Fulbright, that the constitutional basis for the Vietnam War was untenable because the joint resolution on which it was based was procured through fraud -- the Gulf of Tonkin incident was arranged by the United States as a pretext for escalation -- or deceit, because Fulbright and his colleagues never dreamed the Gulf of Tonkin Resolution would be used to support a commitment of arms so vastly greater than was already devoted to the conflict.(3) Something of this sort may be found in Michael Glennon's new book, Constitutional Diplomacy.(4) Because Ely's book is explicitly directed to revising the War Powers Resolution, I confess I expected to see these themes united. As Harold Koh has put it, "Congress passed the War Powers Resolution to prevent future Vietnams, undeclared creeping wars that start and build before Congress or the public are fully aware."(5) Thankfully, I found that Ely's book does not repeat this cant. It is generally scrupulous and, to a rare extent, detached. It really is about the constitutional basis for war powers, and its meticulous rendering of that basis as applied to the Vietnam War is, as far as I know, unique.
There is, however, an anomaly at the heart of the constitutional interpretation of the branches' respective war powers. Until it is resolved, we shall have a complete impasse between partisans of the executive and legislative branches. At first this anomaly appears so absurd, and its resolution so implausible, that I only introduce the problem with considerable temerity. If we attend carefully to the differences in the forms of constitutional argument, however, we can see the subtle and debilitating effects of this anomaly and may even, I believe, find a cure.
The anomaly is that the power to make war is not an enumerated power and thus is not vested by the constitutional text. In that respect, it resembles the power to incorporate a national bank; that is, it amounts to an implied means that must serve the powers that are enumerated and must be accomplished through the ordinary statutory processes that are specified by the text. Once we resolve this anomaly, the many insights and lucid historical descriptions in John Ely's new book, War and Responsibility, can take us a long way toward solving this most vexing of contemporary constitutional issues; but without such a resolution, Ely's proposals will inevitably be fallow and will not, I think, materially affect a debate that is currently at a standstill. Accordingly, I will (i) describe Ely's book and (ii) set it in the context of that debate; (iii) point out the consequences for Ely's argument of the anomaly I have just mentioned; (iv) offer a somewhat different explanation of the constitutional arguments assessing war powers that will account for the anomaly; and (v) suggest how what is novel and particularly impressive in Ely's account might be married to this explanation.
War and Responsibility is divided into six chapters. The first chapter is devoted to the constitutional background of the war powers controversy (pp. 3-11). This is perhaps the most problematic material, though Ely does not appear to believe it to be so. I will describe this problem in much greater detail in the next section.
Chapter Two evaluates the constitutionality of the war in Vietnam and breaks that discussion down into several parts: its overall constitutional legality, the legality of the ground war in Cambodia, the effect of repeal of the Tonkin Gulf Resolution, and the legality of the continued bombing in Cambodia after the withdrawal of American troops from the theater (pp. 12-46).
In his discussion of the overall legality of American involvement, Ely briefly describes the Southeast Asia Treaty Organization (SEATO) treaty,(6) rejects the argument that the SEATO treaty could count as congressional authorization for war (p. 15), and then moves on to a discussion of the Tonkin Gulf Resolution(7) and continuing defense appropriations and the argument that these provide a constitutional basis for the war.
Ely emphasizes the broad language of the Resolution and the fact that transcripts of the congressional debate make it clear that at least some members of Congress clearly understood the breadth of the powers they were granting President Johnson, although they later said they were tricked or misled (pp. 15-26). Ely goes on to say that because Congress repeatedly voted for defense appropriations earmarked for the war in Vietnam and extended the draft, it unquestionably and manifestly continued to authorize the war (pp. 27-30). After a stinging denunciation of what he sees as congressional cowardice and deceit when faced with a constitutional duty to participate in war policy, he concludes: "It was Congress's duty to exercise independent judgment. That's why we have separate branches. That's why the war power is vested in Congress" (p. 30).
Ely also finds that the broad "resist aggression" language of the Tonkin Gulf Resolution authorized the ground war in Cambodia, "though barely" (pp. 31-32), and then naturally turns to the difficult question of what authority for the war generally remained after the repeal of that Resolution. He offers a complicated analysis of Congress's real intent in repealing the Resolution and concludes that because Congress continued to support the war with appropriations and draft extensions, Congress had not effectively de-authorized the war (pp. 32-34). In much the same way he addresses the continued bombing of Cambodia. Again, Ely relies on what he terms Congress's "tongue-and-groove, proceeding more by notice and acquiescence than by anything resembling a straight in-or-out vote" to say that the bombing was authorized because a majority of Congress could have stopped it before August 15, 1973, but did not (pp. 43-46).
Chapter Three addresses the problem of inducing Congress to face up to its constitutional responsibilities. Ely reframes the question in terms of forcing Congress to uphold "the judgment that no single individual should be able to take the nation into war and thereby risk the lives of all of us, especially our young people" (p. 47). He repeatedly links America's military success to a system of legislative authorization that ensures broad public support for military interventions.
Ely writes that the War Powers Resolution was enacted by Congress in an effort to lock itself into a certain role in war policy, so that in future conflicts Congress would not dodge the issue (p. 48). He analogizes Congress's action to Ulysses's lashing himself to the mast to avoid being seduced by the Sirens' song (p. 53). Ely blames the failure of the Resolution partially on the fact that the role Congress had written for itself was one that it had not been eager to assume in the recent past. In addition, he repeatedly quotes the judgments of observers, notably Thomas Eagleton, who have concluded that Congress really does not want to be a part of these decisions (p. 49).
Ely discusses the events leading up to Congress's authorization of the Persian Gulf War, again emphasizing that the President had to request Congress to take the authorization vote (pp. 49-52). In terms of structuring incentives for Congress to fill its constitutional role in the area of war powers, Ely suggests that the President actually has his own strong incentives to share the responsibility of waging war, but Ely also recognizes that it is politically unlikely that future presidents will move in the direction of ceding part of their war powers to Congress (pp. 52-54). Ely also discusses increased judicial oversight of the division of war powers between...