Now Good Time to Study War Powers Act Ramifications

Article excerpt

For students of history, now more than ever might the time to live and study the tensions being created between Congress and the president over the use of the American military in foreign actions and the War Powers Act of 1973.

The Senate voted Tuesday to invoke cloture, a parlimentary procedure to end a filibuster, and renewed its debate over President Reagan's reflagging and protection of 11 Kuwati ships in the Persian Gulf which has been torn by the Iran-Iraq war for the past seven years.

Last Tuesday's 67-28 vote to invoke cloture cleared the way for the Senate to renew debate as to whether the Democratic-controlled Congress should seek to have the War Powers Act invoked or take other steps to limit Reagan's reflagging and naval protection of Kuwaiti oil tankers.

According to later reports, the Senate wants a detailed report from the president on the Persian Gulf policy within 30 days.

The vote came a day after U.S. Navy ships destroyed Iranian military platforms in the Persian Gulf in retaliation for last week's Iranian missile attack on the Sea Isle City, one of the 11 reflagged tankers.

The Senate has debated Reagan's gulf policy since May 17, when an Iraqi missile attack on the Navy frigate Stark killed 37 U.S. sailors, but the lawmakers have been unable to agree on any type of decision. House leaders said that chamber will wait until after the Senate acts before any similar measures are considered in the House.

The resolution on which the filibuster was ended would require a detailed report from the president within 60 days, answering a variety of detailed questions about his policy. Thirty days after that, Congress would be required to act on a resolution expressing some type of view, either positive or negative, on Reagan's policy.

Minority Leader Bob Dole, R-Kan., criticized the Senate because he said, "we've gotten carried away, everybody is looking for their own solution when it may not be needed."

Sen. Daniel Quayle, R-Ind., said, "We all know the War Powers Act is unconstitutional."

That feeling is echoed by Reagan, who, like his predecessors, says the law is unconstitutional because it limits his powers as commander-in-chief and provides for a legislative veto, something in itself the Supreme Court has ruled unconstitutional in Immigration and Naturalization Service v. Chada (462 U.S., 919, 1983), according to University of Oklahoma Law Professor Harry Tepker.

"I'm of the opinion that there are substantial doubts as to the law's constitutionality," Tepker said. "It contains a legislative veto that says a military action must terminate within a certain amount of time. . .(but) the more fundemental problem is whether Congress can limit the president's powers under Article II," the president's powers as commander-in-chief.

Tepker said the act is designed to act as a "deadbrake," allowing Congress to act without really acting and forcing the president to come forward.

"In support of that," Tepker said, proponents of the act "argue that is what the provision to declare war calls for" under Article I of the constitution which outlines Congress' duties. …