In the Libyan civil conflict, our commentators & pundits are now once again dusting off the provisions of what is bandied about as the ‘War Powers Act’ of 1973 (actually, it is the War Powers Resolution), as we have passed the sixty day mark as stipulated therein, whereas the president must begin withdrawing our forces from this (or any other) foreign conflict unless he has a congressional authorisation to continue the commitment of US forces. By this act, the president is further limited in his role as Commander-in-chief by being able “to introduce US Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated” only after (1) a declaration of war, (2) specific statutory authorisation, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
This is political theatre, nothing more, & it always has been, from the very conception of the WPR. The act itself was an attempt by Congress to seize power from the president in the realm of use & control of the military, & it has no real basis in constitutional law.
Remember (if you can, if you’re old enough and/or not a product of public education) that the era of 1973 was a time of bitter divide between a number of segments of American society, & no less so than among the parties. President Nixon had won the greatest landslide in US history in 1972, & the Democrats, quickly scrambling to recover, were still in the process of turning the perception of the Viet Nam War from ‘Johnson’s War’ into ‘Nixon’s War’. No longer did they try to talk around the rampant mis-management of the war by Lyndon Johnson & his Secretary of Defence, Robert McNamara. Instead, the complaint was that Nixon was now the ‘tar baby’ & couldn’t move fast enough to get us out of South Viet Nam, despite the fact that Nixon’s policy of ‘Vietnamisation’ of the war was continuing apace. In fact, the recent Easter Offensive of 1972, when the North Vietnamese (the Viet Cong had effectively ceased to exist after the Tet Offensive in 1968) launched an all-out assault across South Viet Nam, had been beaten back by primarily South Vietnamese forces, though with important assistance from US air & naval gunfire & American advisors. Nevertheless, the Democrats were insisting that Nixon (confusing as we often do the person with the office) was exercising too much war-making power. They apparently woke up to this idea after Johnson was out of office, & they lamented that Congress had acquiesced their responsibility in this regard. This was not, they said, how the division of power was to be exercised according to the Constitution, as if Congress had somehow overlooked that idea for some 180 years. Now it was primarily Congress who would be vested with war-making decisions, with the president functioning as the Commander-in-chief in order to carry out the will of Congress. The WPR allowed the president to commit troops to action in the case of an emergency, but he was greatly restrained without some form of congressional authorisation.
Every president since this declaration of Congress, from Nixon to Obama (& that covers a wide range, believe me) has paid mere lip service to it. None of them has accepted the constitutionality of it, & Congress has not pressed the issue, except in a political attempt to brow-beat whomever occupies the White House at the time. All of the presidents have been correct. Congress has not sought to have the issue clarified by the Supreme Court, (& the Court has remained silent on the issue) likely due to the very real conclusion that the act would be found to be unconstitutional.
The limitation of awaiting a declaration of war is simply a reference to Article 1, Section 8 which gives Congress that power. A declaration has served only as a formal escalation of a war or hostile situation that is already underway, & has only been exercised five times in history, among our 200-some-odd armed conflicts. A declaration as such is simply a legal nicety & is far from a requirement. (Churchill paid faint praise to a declaration of war by saying, “When you have to kill a man it costs nothing to be polite.”)
Otherwise, the act unrealistically limits real options on the part of the president. For example, it does not allow for NEO operations (Non-combat Evacuation Operations) to rescue American & other citizens from foreign danger, to protect our embassies, or to carry out security commitments of a treaty, such as imposition of a cease-fire. According to the provisions of the WPR, the president cannot even act to deter an imminent attack, but instead must absorb the first blow.
It is not unusual that presidents have exercised military action without congressional authorisation. Franklin Roosevelt sent troops to Iceland in 1940 over the apparent objections of Congress; Johnson sent Marines to the Dominican Republic in 1965. After the WPR, Ford recaptured the Mayaguez, Reagan invaded Grenada & extended the naval operations against Iran beyond the 60-day limit, Clinton sent the military to Haiti. President Ford’s comments about the evacuation of DaNang in April 1975 are telling:
(My favourite example of the president’s powers is Theodore Roosevelt & his dispatch of the Great White Fleet around the world in 1907. Congress objected & threatened to withhold money for fuel. Roosevelt sent the fleet anyway, & told Congress that if they wanted it back, they should cough up the funds. They did.)When the evacuation of DaNang was forced upon us during Congress’ Easter recess, not one of the key bipartisan leaders of the Congress was in Washington.
Without mentioning names, here is where we found the leaders of Congress: two were in Mexico, three were in Greece, one was in the Middle East, one was in Europe, and two were in the Peoples Republic of China. The rest we found in twelve widely scattered states of the Union.
This, one might say, is an unfair example, since the Congress was in recess. But it must be remembered that critical world events, especially military operations, seldom wait for the Congress to meet. In fact, most of what goes on in the world happens in the middle of the night, Washington time.
But the law is open in its requirement that prior consultation only applies if it is “possible”, & it requires that the president consult “regularly with Congress” during combat operations.
My point is that presidents consult with Congress anyway, though not in a formalised way such as the WPR. If Congress wants to hark back to the formulation of the Constitution & the fear that a president will abuse his power, those days are gone. During the run-up to Nixon’s eventual resignation, Defence Secretary James Schlesinger is said to have warned the high echelons of the Pentagon to ignore the orders of Nixon in case he was mentally unhinged. Some would say that the story was a rumor, but I saw the anger in all the ranks I had access to at the time (which I shared) over the idea that the military would blindly follow the orders of the president that would not correspond to the oath to support & defend the Constitution. As for Congress, they have always had the power of the purse to limit military options. When the North Vietnamese again tried a strategic assault against the South in 1975 (as they had unsuccessfully tried in 1968 & 1972), Congress withheld funds for further support & South Viet Nam collapsed as a result, despite the best efforts of the best of South Viet Nam’s units.
Beyond this, though, the WPR gives the Congress, by concurrent resolution of both houses, the ability to direct the president to remove troops from military action, without recourse to a presidential veto. This amounts to a legislative veto & as such renders the act unconstitutional.
Congress still retains, as it always has, the ability to pass a concurrent resolution to oppose the president’s use of the military. This is not binding, of course, but it makes it clear that the president has lost the support of one of the three key components of any military action (the Congress, the military, & the people, as ably explained by the late Col Harry Summers), & such operations cannot long continue within the American democracy.
In essence, then , the War Powers Resolution is irrelevant to military operations & serves only as a political shibboleth or totem. Congress does not need it, & it can be replaced by a legislature that has the backbone to express its views in a courageous way.