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War Powers, War Lies: A Series

 Part 5: Outgunned

Published in the Maryland Daily Record June 3, 2005

             As the Vietnam War raged, and the damage it inflicted upon the United States mounted, the War’s opponents besought the courts to call a halt.  This should not have been hard.  After all, there was no declaration of war, and the Constitution required a declaration of war to authorize the prosecution of one.  This presented a ready-made constitutional issue by which the aid of the courts could — in theory — be invoked.

            Accordingly, draftees, reservists, taxpayers, members of Congress and others, in numerous lawsuits, asked courts to address the simple proposition that Vietnam was unconstitutional because not declared.  These efforts came to nothing.  District and circuit judges would either hold the plaintiffs wrong on the merits because of the Tonkin Gulf Resolution and the other “imperfect war” authorizations Congress had given, or they would hold that whichever case was before it was not the right case.  The reasons varied.  Some plaintiffs would be held to lack standing.[1]  Sometimes the government would be found immune to suit.[2]  Sometimes the question the plaintiffs attempted to raise would be deemed political and hence not justiciable.[3]  At least the lower courts had to and did rule; the Supreme Court was AWOL. Throughout the Vietnam era, it never agreed to hear a single case in which the constitutional legitimacy of the War was challenged as being beyond Executive powers.

            This unwillingness of the courts to act did not go unnoticed in Congress, particularly after it emerged in 1970 that President Nixon had been bombing Cambodia not only without Congress’ approval, but even without its knowledge.  Congress, finally aware that it faced a choice between self-help and no help, took two steps.  It repealed the Gulf of Tonkin resolution.[4]  And, under the leadership of Senate Republican Jacob Javits and House Democrat Clement Zablocki, it passed what became known as the War Powers Resolution.[5]

            Despite its name, the War Powers Resolution was actually a statute, codified at 50 U.S.C. §§ 1541-48.  The Resolution states its ambitious goals in its preamble:

It is the purpose of this chapter to fulfill the intent of the framers of the Constitution of the United States and 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, or into situations where imminent involvement in hostilities, is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.

To achieve this end, the Resolution required the President to “consult” with Congress, whenever possible, before introduction of armed forces into hostilities or imminent involvement in hostilities, and continuously during the presence of armed forces in those situations.  In addition, the President was required to submit, and to renew periodically, notice to Congressional leaders which explained the reasons and constitutional and legislative authority for such introductions of force, as well as the estimated scope and duration of the involvement of the armed forces.  The “teeth” of the Resolution was a standing requirement that the President withdraw the forces if, within 60 days after the submission of a report, Congress had not specifically authorized that the troops stay.  This was an attempt to forestall any argument that the President’s war-making has been tacitly approved by some other enactment of Congress, like the law authorizing recapture of ships from the French “enemy” in Bas v. Tingy, or the Gulf of Tonkin Resolution.

            Presidents have not liked the Resolution, and have frustrated it where they could, starting with President Nixon, who tried unsuccessfully to veto it.  Compliance mechanisms required by the Resolution were not set in place for two years after Congress passed it, not until there was an explicit Congressional demand.[6]  Only one President, Jimmy Carter, has ever conceded the constitutionality of the Resolution.[7]

            Of course, if Presidents did not acknowledge it, then what?  Stalin, responding to a suggestion that he placate the Church by fostering Catholicism, inquired scornfully how many divisions the Pope had.  Military capacity being the only route to power Stalin recognized, he simply did not care what a Pope lacking that capacity might think.  Presidents have historically been in a similar situation regarding the Resolution.  In our constitutional system, Congress has very little ability without judicial help to bring Presidents to heel.  Even the power of the purse is so shot through with exceptions, with impoundment powers, with black budgets, and with means of spending in spite of Congressional will, that it is of very limited utility.  Courts alone have effective power to trump most exercises of executive power.  And unless the Courts enforce the Resolution, it has exactly as much force as Presidents give it.  This is like giving foxes jurisdiction to determine the validity of rules about henhouses.  And, just as the Supreme Court managed to get through Vietnam without ever ruling on the legality of that War, just so has the Court failed to deal with the Resolution throughout all the presidential warmaking that has passed since the Resolution became “law.” (In fact, apart from cases concerning detainees, the Supreme Court has said nothing significant about Presidential war powers since the Korean War.)

            The result?  Each President but Carter has in turn explicitly or implicitly maintained that the Constitutional clauses making the President the Commander in Chief of the Armed Forces (Art. II, § 2) and the Chief Executive (Art. II, § 1), give the President an unconditional power to commit troops when and how he chooses, a power the Congress cannot constitutionally abridge.

            However, the Supreme Court’s AWOL status on this issue having left not just the Congressional but also the Presidential position unaffirmed, Presidents have had no way of being positive they were right.  This has given rise to a slight hesitancy on the part of the Executive.  The vacuum of decision and Executive hesitancy have left the parties, Congress and the President, playing a delicate game around the Resolution.

            The rules of the game are usually as follows. Presidents: (a) deny the constitutionality of the Resolution, but (b) comply to varying extents with its provisions, while (c) stating that they do so for purposes other than compliance or at least without agreeing that they need to comply.  Congresses: (a) periodically insist that they are in charge under the Resolution, but (b) almost always supply whatever money and authority Presidents ask for.  Periodically Congress will recite its own reliance on the Resolution when voting for the funds, or (and this is rare) voting to curtail funds (e.g. cutting off FY 2000 funds for Operation Uphold Democracy in Haiti).[8]

            Thus there was a refusal to consult meaningfully in advance of the Da Nang sealift (in the Spring of 1975), the Cambodian evacuation (in April of 1975), the Saigon evacuation (in April 1975), and the Mayaguez incident (in May 1975) – although in the latter instance the Ford Administration at least acknowledged its obligations under the Resolution.[9]  There was no consultation on the Iran Hostage operation, notwithstanding President Carter’s acknowledgment of the Resolution.[10]

            The Reagan administration initially complied.  In the detailing of troops to the Sinai peace-keeping force (1982), and the deployment of U.S. aircraft to Chad (1983) Reagan made the necessary reports and received the necessary authorizations.[11]

            Starting with the stationing of Marines in Lebanon, however, Reagan began to resist.  Forces were sent in August of 1982, without a report to Congress, but in August of 1983, when deaths were mounting, and it became clear some kind of Congressional resolution of support would be required, Congress insisted upon, and received, deference to the Resolution, including the right to limit the size of the force there, and the duration of its stay.[12]

            Subsequent military adventures by Reagan and others gradually strengthened the Executive hand. Presidents have consulted with Congress after the fact (Grenada); Presidents have cited treaties or other authority for their actions, and did not acknowledge Congressional action pursuant to the Resolution as their authority, even when they technically remain in compliance (First Gulf War); or simply have not complied at all (El Salvador, where U.S. military “advisors” received combat pay).  Congress has sometimes voted authorization under the Resolution (Second Gulf War, Somalia, Haiti, Lebanon).  But almost nowhere was there any evidence of the shaping of U.S. commitments of force by the Congress as the Resolution was intended to require.  To the contrary, Congressional action often became incoherent.

            Take, for instance, the response of Congress to President Clinton’s commitment of troops to Kosovo, summarized in a 2003 article by Andre Miksha.  First, 36 days after Operation Allied Force began, Congress passed a bill prohibiting expenditures for ground forces without specific Congressional authorization.  Second, Congress defeated a bill to remove ground troops under the Resolution.  Third, Congress declined to declare war on Yugoslavia.  Fourth, the House defeated a bill authorizing air strikes.  In this incoherent tangle of legislation, one finds no provision authorizing the troops to be in Kosovo.  Yet there they were.  Certain members of Congress brought a suit challenging the constitutionality of the continuing commitment of troops under the Resolution, but of course were turned aside for a multitude of reasons including justiciability and standing, and the Supreme Court, aloof as ever, denied certiorari.[13]

            The latest stage in the rout of the Resolution has been the position taken by the second Bush Administration in the wake of 9/11.  Certainly Bush had Resolution-compliant authorization for his early War on Terror activities, as Congress had unanimously passed a bill on September 14 which could reasonably be read to bless the use of military force not only against Al Quaeda, but also against Afghanistan.  But on September 25, John Yoo, now a law professor at Berkeley, then of the Office of Legal Counsel in the Justice Department, issued an opinion in which he stated that Congressional authorization was nugatory because of the President’s ability to respond to sudden attacks.  He reiterated the position in testimony given to Congress on April 17, 2002.  In fact he interpreted the Resolution as acknowledging virtually unlimited Executive war-making power in response to sudden attack.  Formally, this was certainly correct.  Under the Resolution, Presidents have the ability to commit forces first, and make their explanations to Congress later.  But Yoo read the Resolution as acknowledging constitutional Executive authority for any and all possible post-9/11 deployments of force.

            Yoo described constitutional Presidential powers under these circumstances in unlimited terms.  Neither the Resolution nor the September 14 bill could “place any limits on the … amount of military force to be used …, or the method, timing, and nature of the response.”  If Yoo was right, once the U.S. was attacked, the Resolution was irrelevant.  The exclusive power of Congress to declare war was nothing more than the ability to ordain a certain juridical status in the relations between the U.S. and other countries.  In Yoo’s view, this power avoided total lack of consequence only because a declaration of war triggers important effects under the Law of Nations.  (Yoo did not address just how important those effects might remain in an era when ignoring the Law of Nations has become SOP for the Bush Administration — to be discussed in a later piece.)  Yoo’s hard-line position became Bush doctrine.

            Fuller treatment of the way the Yoo approach played out in the invasion of Iraq must await a later part of this series.  But certainly Clinton’s near-defiance of the Resolution and Yoo’s apologia for rendering the Resolution irrelevant underline the fact that the Resolution is effectively a failure.  Without the aid of the courts, Congress is no match for the Executive.  Presidents decide, period.  Congress, outgunned by the Executive and deserted by the Judiciary, goes along.  The Framers would have been dismayed.

[2].  See, e.g., Luftig v. McNamara, 373 F.2d 664 (D.C. Cir.), cert. den., 387 U.S. 945 (1967).

[3].  See, id.  A relatively concise summary of the arguments as to standing and justiciability can be found in Justice Douglas’ dissent from the Supreme Court’s denial of leave to file a bill of complaint in Commonwealth of Massachusetts v. Laird, 400 U.S. 886 (1970).

[4].  Act Jan. 12, 1971, Pub.L.No. 91-672, § 12, 84 Stat. 2053.

[5].  Pub.L. No. 93-148, Nov. 7, 1973, 87 Stat. 555, codified at 50 U.S.C. §§ 1541 et seq.

[6].  C. Zablocki. War Powers Resolution: Its Past Record and Future Promise, 17 LOYOLA OF L.A. L.REV. 579, 580 (1984).  Representative Clement Zablocki was the Chairman of the House Committee on Foreign Affairs, and, along with Senator Jacob Javits, the principal architect of the War Powers Resolution.  This article, published just after his death, is a most concise history of the Resolution up through the time of the invasion of Grenada, and is liberally cited below. 

[7].  I Pub. Papers fo Pres. Jimmy Carter 324 (Mar. 5, 1977), quoted in (R. Moss), Office of Legal Counsel, U.S. DOH, Authorization for Continuing Hostilities in Kosovo (Preliminary Print) (Dec. 19, 2000), 2000 WL 33716980 (O.L.C.)

[8].  Pub.L. 106-65, Div. A, Title XII, § 1232, Oct. 5, 1999, 113 Stat. 788, as amended Pub.L. 107-107, Div. A, Title XII, § 1222, Dec. 28, 2001, 115 Stat 1253, provided that:

“(a) Limitation on deployment.–No funds available to the Department of Defense during fiscal year 2000 may be expended after May 31, 2000, for the continuous deployment of United States Armed Forces in Haiti pursuant to the Department of Defense operation designated as Operation Uphold Democracy.

[9].  S.DOC. No. 56, 94^th Cong., 1^st Sess. (1975), cited in Zablocki, supra, along wih other facts noted in the same sentence, at 580-86.

[10].  Zablocki, supra, at 586.

[11].  Zablocki, supra, at 589.

[12].  H.R. J.RES. 64.  See, Zablocki, supra, at 691-96.

[13].  Campbell v. Clinton, 203 F.3d 19 (D.C. Cir.), cert. denied 531 U.S. 815 (2000).

Copyright (c) Jack L. B. Gohn

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