The War Powers Resolution-A Dim and Fading Legacy

Article excerpt

Abstract

The 1973 War Powers Resolution, adopted over the veto of a weakened President Nixon after the Vietnam War, has not fulfilled its supporters' hope of a stronger Congressional role in decisions involving U.S. uses of force. No administration has accepted its key provisions' constitutionality, and Congress has been unwilling or unable to perform the role it set for itself of approving or terminating the introduction of U.S. forces into hostilities. Hence, the Resolution has had only modest impact. Despite occasional debates regarding compliance, it has not materially affected successive presidents' decisions to use force. It seems likely to have less impact in the future, given Congress's broad authorization for the use of force following the 9/11 attacks and the changing nature of warfare, including the growing role of non-military actors, cyber warfare and other new forms of conflict, secret operations, and remotely piloted weapons.

CONTENTS

I.   INTRODUCTION

II.  THE RESOLUTION IN PRACTICE

III. WHAT OF THE FUTURE?

     A. The Continued Role of the A UMF

     B. The Changing Nature of Warfare

IV. CONCLUSION.

I. INTRODUCTION

I begin with a disclaimer. I am not a scholar of constitutional or national security law. For thirty years, I was employed in various legal capacities by the U.S. Department of State. Since then, I have edited the American Journal of International Law's section on Contemporary U.S. Practice Related to International Law for many years. I was also a military police lieutenant in the early 1970s, in a U.S. Army badly scarred by its long and painful experience in Vietnam. (1) Thus, I am familiar with debates about the War Powers Resolution. (2) All this has left me with a generally "pro-executive" bias in the recurring debates about the proper roles of Congress and the executive in national security matters.

I will not try to add to the discussion on the constitutional propriety of the War Powers Resolution, nor will I do much lawyerly parsing of the text. Instead, I will briefly describe how the Resolution has had only a modest impact over the last forty years and then suggest why I think it is likely to have even less significance going forward.

The War Powers Resolution was the offspring of an increasingly unpopular war and an increasingly unpopular presidency. (3) As Professor Stephen L. Carter observed, it was "forced on a weakened President Nixon by a Congress brimming with confidence in the wake of the Watergate scandals." (4) Consider the timeline:

   March 1971--The approval rating for U.S. Vietnam policy
   dropped to 41%, and approximately half of all Americans
   polled thought the war was "morally wrong." (5) First
   Lieutenant William Calley was convicted of murdering
   twenty-two civilians at My Lai by a court martial.

   June 1972--The Watergate burglary.

   January 23, 1973--Paris Peace Accords signed.

   January 27, 1973--Secretary of Defense Melvin Laird
   announced the end of the draft.

   Spring 1973--The Watergate hearings began.

   June 1973--Congress approves the Case-Church Amendment by
   wide margins, barring further military involvement in Vietnam,
   Laos, and Cambodia.

   October 1973--Vice President Spiro Agnew resigned and
   pleaded guilty to criminal charges.

   November 7, 1973--The War Powers Resolution was passed
   over President Nixon's veto.

   May 1974--Congress began impeachment proceedings.

   August 9, 1974--President Nixon resigned.

The War Powers Resolution is the product of a time when Congress was riding particularly high and the presidency was particularly weak. (6) That unusual array of circumstances has not been repeated. In the ensuing years, no administration has accepted the constitutionality of the Resolution's key provisions. (7) At the other end of Pennsylvania Avenue, Congress has not mustered the collective will to insist on full and timely compliance with the Resolution in a wide range of cases. …