I realize that this isn’t really a “first thing,” nor is it my first thought on the subject, but this is my soapbox and you are my captive audience, so here goes.
There’s been a lot of noise recently about the War Powers Act . The most recent moves include a spate of Congressional resolutions , a letter from Speaker John Boehner to the President, a letter from the President to the Speaker , a lawsuit filed by members of Congress, and a report issued by the White House that satisfies almost no one.
The best attempt to put the brouhaha in a larger constitutional perspective is this one , written by two political theorists I admire. A snippet:
Our actions in Libya, and the corresponding political conflict it has engendered, evince the virtues of our Constitution. Decisive action, such as the decision to attack Libya when Qadaffi was attacking his own people, is an essential component to a successful foreign policy. But it is not the only component of a successful foreign policy. The wisdom, strategic value, and costs of such ventures must be considered and debated in light of our nation’s other obligations and interests. This is the province of Congress. Its size and representative nature allows it to investigate, deliberate, and evaluate. It can ask and debate the tough questions about our foreign policy for which the president does not have time.The presidency is designed for action. Congress is designed for deliberation. At times, presidential decisiveness will necessarily come into conflict with legislative deliberativeness. This need not trouble us. If a situation calls more for “energy” and speed, the president will likely win. If the situation calls for more deliberation and more circumspection, Congress will likely win.
I think that it’s entirely appropriate that Congress—especially at this stage of the game—assert its institutional and constitutional prerogatives. By my lights, the President’s response to Congress has been wholly inadequate, more reminiscent of Bill Clinton’s sematical somersaults than of anything else.
The President is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of “hostilities” contemplated by the Resolution’s 60 day termination provision. U.S. forces are playing a constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited to the terms of a United Nations Security Council Resolution that authorizes the use of force solely to protect civilians and civilian populated areas under attack or threat of attack and to enforce a no-fly zone and an arms embargo. U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.
I note in passing that the last sentence could just as easily be applied to a massive U.S. nuclear strike that so disabled an adversary that it was incapable of retaliating.
To be sure, military intervention often requires both expeditious action and the prudential weighing of a number of factors that can’t be determined in advance by any legislation. That’s what makes the War Powers Act so problematical, and attempts to enforce it judicially, even by means of complaints drafted by respectable law professors , so fruitless. Consider this decision , handed down by a federal court almost thirty years ago, when some members of Congress challenged the Reagan Administration’s action in El Salvador:
The Court concludes that the factfinding that would be necessary to determine whether U.S. forces have been introduced into hostilities or imminent hostilities in El Salvador renders this case in its current posture non-justiciable. The questions as to the nature and extent of the United States’ presence in El Salvador and whether a report under the WPR is mandated because
our forces have been subject to hostile fire or are taking part in the war effort are appropriate for congressional, not judicial, investigation and determination. Further, in order to determine the application of the 60-day provision, the Court would be required to decide at exactly what point in time U.S. forces had been introduced into hostilities or imminent hostilities, and
whether that situation continues to exist. This inquiry would be even more inappropriate for the judiciary.
As for the War Powers Act itself, I can’t really improve on President Reagan’s comments , also offered almost thirty years ago.
There have been historic differences between the legislative and executive branches of government with respect to the wisdom and constitutionality of section 5(b) of the War Powers Resolution . That section purports to require termination of the use of United States Armed Forces in actual hostilities or situations in which imminent involvement in hostilities is clearly indicated by the circumstances unless Congress, within 60 days, enacts a specific authorization for that use or otherwise extends the 60-day period. In light of these historic differences, I would like to emphasize my view that the imposition of such arbitrary and inflexible deadlines creates unwise limitations on Presidential authority to deploy United States Forces in the interests of United States national security. For example, such deadlines can undermine foreign policy judgments, adversely affect our ability to deploy United States Armed Forces in support of these judgments, and encourage hostile elements to maximize United States casualties in connection with such deployments.I believe it is, therefore, important for me to state, in signing this resolution, that I do not and cannot cede any of the authority vested in me under the Constitution as President and as Commander in Chief of United States Armed Forces. Nor should my signing be viewed as any acknowledgment that the President’s constitutional authority can be impermissibly infringed by statute, that congressional authorization would be required if and when the period specified in section 5(b) of the War Powers Resolution might be deemed to have been triggered and the period had expired, or that section 6 of the Multinational Force in Lebanon Resolution may be interpreted to revise the President’s constitutional authority to deploy United States Armed Forces. Let me underscore, however, that any differences we may have over institutional prerogatives will in no way diminish my intention to proceed in in the manner outlined in my letter of September 27, 1983, to achieve the important bipartisan goals reflected in this resolution.
Congress has the power of the purse, which it can use to extract from the President a more adequate explanation of why we should be doing whatever it is we’re doing in Libya. Offering such an explanation is clearly in his interest as well: exercises of U.S. military power not restricted to one isolated incident (e.g., rescuing hostages from a particular band of Somali pirates) are likely to have their intended effect only if the President is plausibly speaking for the nation. What’s more, when the President encourages Congress to take its appropriate share of the responsibility for the action, his own leadership is strengthened, rather than diminished, as it’s harder for members of Congress to carp from the sidelines.
Each branch has a role to play in this. For the most part, Congress has been playing its role reasonably well. President Obama has been doing a bad imitation of George W. Bush and an even worse one of Ronald Reagan. Early on, observers noted that he was more scrupulous about consulting allies and international bodies like the U.N. than he was about consulting with Congress. Diplomacy is certainly his role. But the time it took for diplomacy gives the lie to any claim that matters were so urgent that there was no time to permit Congress to play its part.
Let’s learn from this and move on.
