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The War Powers Resolution Ten Years Later: More Politics than Law

Published online by Cambridge University Press:  27 February 2017

Michael J. Glennon
Michael J. Glennon*
Affiliation:
University of Cincinnati College of Law, Senate Foreign Relations Committee
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Extract

On November 7, 1973, Congress overrode the veto of President Richard Nixon and enacted a law intended to “insure that the collective judgment of both the Congress and the President will apply to the introduction of the United States Armed Forces into hostilities.” A war-making process that had too long been political, many legislators euphorically believed, had been made legal.

Type
Research Article
Information
American Journal of International Law , Volume 78 , Issue 3 , July 1984 , pp. 571 - 581
Copyright
Copyright © American Society of International Law 1984

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References

1 War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (codified at 50 U.S.C. §§1541-1548 (1976)) [hereinafter referred to as Resolution].

2 103 S. Ct. 2764 (1983).

3 Resolution, §5(c).

4 See, e.g., the remarks of Senator Jacob K. Javits, the resolution’s chief sponsor in the Senate, upon its enactment; “At long last . . . Congress is determined to recapture the awesome power to make war.” 119 Cong. Rec. 36, 187 (1973).

5 The term “hostilities,” as used in this article, includes “situations where imminent involvement in hostilities is clearly indicated by the circumstances.” See Resolution, §4(a)(l).

6 Id., §4(a).

7 Id., §5(b). Under the resolution, Congress retained the power to order, by concurrent resolution, the withdrawal of U.S. forces from hostilities. See id., §5(c). For a discussion of this provision, see text accompanying notes 49-58 infra.

8 See Resolution, §5(b). The resolution provides that the time commences when a report is “required to be submitted,” but it establishes no procedure for that determination to be made if the President fails to do so. Id.

9 Id., §4(a)(2).

10 Id., §4(a)(3).

11 See President’s Letter to the Speaker of the House and the President Pro Tempore of the Senate, 18 Weekly Comp. Pres. Doc. 1232 (Sept. 29, 1982).

12 See President’s Letter to the Speaker of the House and the President Pro Tempore of the Senate, 19 id. at 1186 (Aug. 30, 1983).

13 See President’s Letter to the Speaker of the House and the President Pro Tempore of the Senate, id. at 1493 (Oct. 25, 1983).

14 Multinational Force in Lebanon Resolution, Pub. L. No. 98-119, 97 Stat. 805 (1983).

15 H.R. Rep. No. 385, 98th Cong., 1st Sess. 5 (1983).

16 See Henry, , The Legislative Veto: In Search of Constitutional Limits , 16 Harv. J. Legis. 735, 737-38 n.7 (1979)Google Scholar (collecting citations to presidential statements).

17 103 S. Ct. 2764 (1983).

18 Id. at 2779.

19 Id. at 2779 n. 13.

20 The invasion of Grenada took place on Oct. 25, 1983. On Oct. 27, the House Foreign Affairs Committee voted to declare that U.S. troops had become involved in “hostilities” as of the date of the invasion. H.R.J. Res. 402. On Oct. 28, the Senate voted 64-20 to add a rider to legislation raising the national debt ceiling that similarly invoked the resolution. See 129 Cong. Rec. S14.876 (daily ed. Oct. 28, 1983). On Nov. 1, the House passed H.R.J. Res. 402 by a vote of 403-23-7, purporting to invoke the resolution as of Oct. 27. H.R.J. Res. 402, 98th Cong., 1st Sess. (1983). Neither provision, however, was agreed to by the other House.

21 See, e.g., Letter of Nov. 1, 1973 from Thomas E. Morgan, Chairman, House Committee on Foreign Affairs, to Congress, reprinted in 119 Cong. Rec. 35,868 (1973) (responding to presidential veto message of the War Powers Resolution). Answering President Nixon’s contention that the resolution was not clear on the 60-day time limit, Representative Morgan said that “the provisions of the Resolution are triggered by a specific, tangible act by the President—i.e., introduction of troops into hostilities.” Id.

22 See, e.g., 119 Cong. Rec. 33,550 (1973).

24 See, e.g., 119 id. at 33,859 (1973) (remarks of Rep. Zablocki); 118 id. at 11,026 (1972) (remarks of Sen. Javits).

25 N.Y. Times, Oct. 23, 1983, §6 (Magazine), at 108.

26 H.R. Rep. No. 385, supra note 15, at 4.

27 See text accompanying note 21 supra.

28 N.Y. Times, Sept. 29, 1983, at A8, col. 6.

29 See supra note 21.

30 See supra note 13.

31 See supra note 20.

32 See, e.g., 118 Cong. Rec. 11,532 (1972) (remarks of Sen. Talmadge).

33 N.Y. Times, Oct. 29, 1983, at 9, col. 1 (NYT/CBS poll).

34 S. Rep. NO. 242, 98th Cong., 1st Sess. 10 (1983).

35 Id.

36 S. 1484, 94th Cong., 1st Sess. (1975).

37 S. Rep. No. 88, 94th Cong., 1st Sess. (1975).

38 S. 1484, supra note 36, §3(a).

39 Id., §3(b) and (c).

40 S. Rep. NO. 242, supra note 34, at 13.

41 Id. at 10.

42 War Powers Legislation: Hearings on S. 731, S.J. Res. 18 and S.J. Res. 59 Before the Senate Comm. on Foreign Relations, 92d Cong., 1st Sess. 142-43, 197, 353, 466, 469, 495 (1971).

43 6 U.S. (2 Cranch) 170 (1804).

44 Act of Feb. 9, 1799, ch. 2, §5, 1 Stat. 613, 615, quoted in Little v. Barreme, 6 U.S. at 171.

45 Little, 6 U.S. at 177-78.

46 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., concurring).

47 Id. at 637.

48 Dames & Moore v. Regan, 453 U.S. 654, 680 (1981).

49 103 S. Ct. 2764 (1983).

50 U.S. Const, art. I, §7, cl. 3.

51 Chadha, 103 S. Ct. at 2784.

52 Id. at 2796 (White, J., dissenting). Justice White’s conclusion was that “[t]he Court’s Article I analysis appears to invalidate all legislative vetoes irrespective of form or substance.” Id.

53 The legislative veto at issue in Chadha was contained in §244(c)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1254(c)(2) (1976).

54 Congressional Budget and Impoundment Control Act of 1974, 31 U.S.C. §1403.

55 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 586 (1952).

56 453 U.S. at 682.

57 Chadha, 103 S. Ct. at 2784.

58 The Court’s holding in Chadha that Congress can speak legislatively only by following the requirements of the Presentation Clause finds support in some older cases suggesting that it is impermissible for a court to consult legislative debates to determine the meaning of a statute. See, e.g., Standard Oil v. United States, 221 U.S. 1, 50 (1910); United States v. Trans-Missouri Freight Ass’n, 166 U.S. 290, 318 (1896). The law today is clearly to the contrary.

59 See Will, , War Powers Act and Common Sense , L.A. Times, Sept. 15, 1983, §2, at 7, col. 1Google Scholar; Moore, , Rethinking the “War Powers” Gambit , Wall St. J., Oct. 27, 1983, at 30, col. 3 Google Scholar.

60 For a collection of citations to statutes exhibiting the variety of legislative vetoes that exist, see Chadha, 103 S. Ct. at 2811-16 (White, J., dissenting).

61 There are intimations that such sunset laws were within the intent of the Framers. See 2 The Records of The Federal Convention of 1787, at 587 (M. Farrand ed. 1966) (quoting Madison as recognizing the possibility that limits in the duration of laws would be used by Congress), cited in Chadha, 103 S. Ct. at 2785 n.18. The Court in Chadha recognized that durational limits on authorizations “would be a constitutionally permissible means of limiting the power of administrative agencies.” Id. at 2786 n.19.

62 Crockett v. Reagan, 720 F.2d 1355 (D.C. Cir. 1983), aff’g 558 F. Supp. 893 (1982).

63 The district court reasoned that “[t]he question here belongs to the category characterized by a lack of judicially discoverable and manageable standards for resolution.” Id., 558 F. Supp. at 898. The court was referring to the formulation of the Supreme Court in Baker v. Carr, 369 U.S. 186 (1962). But it is clear from the Supreme Court’s discussion in Baker that it meant to foreclose the judicial resolution of disputes characterized by indeterminate legal standards, not fact-finding difficulties. The “lack of criteria by which a court could determine which form of government was republican,” id., 369 U.S. at 222, was the reason that a political question was presented in Luther v. Borden. The Court did not suggest that judicial abstention was required by any proof problem presented by the facts of the case. Yet it is for the latter reason—the proof problem—that the Crockett court dismissed the plaintiff’s complaint. “[T]he Court no doubt would be presented conflicting evidence. . . . The Court lacks the resources and expertise (which are accessible to the Congress) to resolve disputed questions of fact concerning the military situation in El Salvador.” Crockett, 558 F. Supp. at 898. Such questions of fact can be addressed as they always are, namely, through the use of interrogatories, depositions, testimony and all the other means of gathering evidence. It may or may not be correct that the plaintiffs would succeed in establishing their claim by a preponderance of the evidence; the opportunity to meet that burden, in any event, is one that the law accords them. It is worth remembering that the doctrine is “one of ‘political questions,’ not one of ‘political cases.’ The courts cannot reject as ‘no law suit’ a bona fide controversy as to whether some action denominated ‘political’ exceeds constitutional authority.” Baker, 369 U.S. at 217.

64 See Baker v. Carr, 369 U.S. 186 (1962). In Baker, the Court stated that “the nonjusticiability of a political question is primarily a function of the separation of powers,” id. at 210, seemingly implying that the political question doctrine is constitutionally mandated and that it is thus beyond the power of Congress to order the Court to decide a political question. See also Sierra Club v. Morton, 405 U.S. 727, 732 n.3 (1972).

65 Sen. Arlen Specter (R., Penn.) indicated recently that “there has been some discussion between the Senate leadership and the White House to formulate a test case that would go to the Supreme Court of the United States which would decide this question in a nonconfrontational context.” N.Y. Times, Mar. 29, 1984, at A6, col. 1. If die President and congressional leaders made a direct appeal to the Supreme Court to take up the War Powers Resolution, Senator Specter said, he believed it would do so. It is hard to see how the Court could entertain such an action, however, without overturning long-standing precedent. Since 1793, the Supreme Court has maintained that it has no power, constitutionally, to render advisory opinions. In that year, President Washington sought to have the Court answer certain legal questions in the absence of any immediate controversy. However, the Court unanimously declined to do so. See P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart & Wechsler’s The Federal Courts and The Federal System 64-66 (2d ed. 1973). Accordingly, the Court has consistently held that the “case or controversy” requirement of Article III of the Constitution is not satisfied unless a bona fide dispute exists and the parties are genuinely adverse. See United States v. Johnson, 319 U.S. 302, 305 (1943) (a suit “is not in any real sense adversary” if it is “collusive”).

66 720 F.2d at 1357 (Bork, J., concurring).

67 See Note, , Congressional Access to the Federal Courts , 90 Harv. L. Rev. 1632 (1977)Google Scholar.

68 The Supreme Court has indicated that Congress does have the power to confer standing by statute:

Moreover, Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules. Of course, Art. Ill’s requirement remains: the plaintiff still must allege a distinct and palpable injury to himself, even if it is an injury shared by a large class of other possible litigants. . . . But so long as this requirement is satisfied, persons to whom Congress has granted a right of action, either expressly or by clear implication, may have standing to seek relief on the basis of the legal rights and interests of others, and, indeed, may invoke the general public interest in support of their claim.

Warth v. Seldin, 422 U.S. 490, 500-01 (1975). See also Sierra Club v. Morton, 405 U.S. at 732 n.3, 737; FCC v. Sanders Radio Station, 309 U.S. 470, 477 (1940).

Cf. 2 U.S.C. §437h(a) (1970 ed., Supp. IV) (facilitating judicial review of Federal Election Campaign Act) and Buckley v. Valeo, 424 U.S. 1 (1976) (construing that provision as “intended to provide judicial review to the extent permitted by Art. III,” id. at 11-12).

69 See, e.g., Glennon, , Strengthening the War Powers Resolution: The Case for Purse-Strings Restrictions , 60 Minn. L. Rev. 1 (1975-76)Google Scholar. See also note 72 infra.

70 Restraints on “covert” activities similar to those contained in the War Powers Resolution concerning members of the armed forces arguably already exist in the Neutrality Act. 18 U.S.C. §960 (1976). A federal district court recently decided that §960 may have been violated by President Reagan’s support of guerrilla attacks on Nicaragua. Dellums v. Smith, 577 F. Supp. 1449 (N.D. Cal. 1984). The district court’s order was stayed by a panel of the Ninth Circuit, No. 84-1525, Apr. 18, 1984. The limitations of the Neutrality Act logically belong with those of the War Powers Resolution, and any omnibus amending legislation should combine the two.

71 See Atwood, , The War Powers Act Doesn’t Work , Wash. Post, Oct. 2, 1983, at C8, col. 1 Google Scholar.

72 War Powers Resolution, 1977: Hearings Before the Senate Comm. on Foreign Relations, 95th Cong., 1st Sess. (1977).

73 See, e.g., Senate Comm. on Foreign Relations, Comm. Print No. 2, 95th Cong., 1st Sess. (Comm. Print 1977), reprinted in id. at 338.

74 The Reagan administration has also seen a deficiency in the resolution, but this apparently derives from disagreement with the objective of congressional participation in war-powers decision making. Secretary of State George Shultz has argued that the resolution includes too many participants in that process, with the result that other nations are unable to determine exactly what foreign policy is being pursued by the United States. See Reston, A Talk with Shultz, N.Y. Times, Mar. 28, 1984, at A27, col. 2. The position expressed by the Secretary of State suggests that the administration’s preferred remedy for the resolution is the exclusion of Congress from the process. Compare Nomination of Alexander M. Haig, Jr.: Hearings Before the Senate Comm. on Foreign Relations (Part I), 97th Cong., 1st Sess. 34 (1981); Nomination of George P. Shultz: Hearings Before the Senate Comm. on Foreign Relations, 97th Cong., 2d Sess. 113 (1982) (testimony of Secretaries Haig and Shultz indicating intent to comply fully with provisions of the War Powers Resolution).