The War Powers Resolution and Public Opinion
Noone, Gregory P., Case Western Reserve Journal of International Law
This essay focuses on the 1973 War Powers Resolution (WPR) and the impact of public opinion. Over the last forty years it might best be described as "political cover" for Congress. It allows Congress to abdicate its role in making decisions that might ultimately prove unpopular with voters. Congress may seek adherence to the WPR when there is disagreement among the elite. But more often than not there are few calls for a WPR. There are electoral disincentives for confronting the president over foreign policy. However, research indicates that the WPR appears to have impacted the behavior of presidents because presidents have rarely used force for more than sixty days without congressional authorization.
CONTENTS I. INTRODUCTION II. THE VIETNAM EFFECT III. CONGRESS IS A DISTANT THIRD IV. THE PUBLIC WANTS CONGRESS TO APPROVE V. THE PRACTICAL EFFECT OF THE WPR VI. CONCLUSION
The 1973 War Powers Resolution (often alternatively referred to as the War Powers Act--its title in the Senate version of the law) has been described as constitutionally unnecessary as well as a "fraud" and "feckless." (1) But over the last forty years it might best be described as "political cover" for Congress.
Jack Goldsmith describes the phenomenon of policy approval in Washington D.C. in the political context. Such as when President George W. Bush did "soft things" like releasing detainees from Guantanamo Bay and trying suspected terrorists in civilian courts in the United States. The Democrats liked the policy and the Republicans liked the president. Whereas, when President Barack Obama does "hard things" such as using unmanned aerial vehicles (also known as "drones") for targeted killings in Yemen and Pakistan, the Republicans like the policy and the Democrats like the president. Both of these concepts are rooted in partisanship for at least one side in each scenario. With that said, playing against type has a long history in American politics. Only a hardline anti-Communist such as President Richard M. Nixon could go to China. President William J. Clinton succeeded in welfare reform, and President George W. Bush reshaped education at the local level with No Child Left Behind.
But partisanship does not necessarily hold true when the president uses force that would clearly fall under the rubric of the War Powers Resolution (WPR). The partisanship angle of this issue requires an examination of congressional support for presidential use of force. In other words, does congressional support simply follow partisan lines? Through an examination of polling data, the results indicated that congressional behavior was not based on partisanship but more on tracking the public opinion of the American people. With a few outliers on each end of the spectrum, such as Congressman Dennis Kucinich (D-Ohio) and Congressman Ron Paul (R-Texas), most of Congress will support the president's use of force regardless of party so long as the polling data indicates strong public support.
Therefore, Congress' action is more closely linked to public opinion than party affiliation. This is not a surprise to anyone who follows politics, but use of force decisions involve sending men and women into harm's way. One would hope such decisions are made because of principled positions of leaders as opposed to followers with their fingers in the air.
Congress may seek adherence to the WPR when there is disagreement among the elite (i.e., the president, politicians, media, intellectuals, experts). But more often than not there are few calls for a WPR, and the leadership and members in both parties are happy to let the president go on his own. However, when public opinion, as demonstrated through national polls (and arguably through constituent contact, which is very difficult to measure and of which very little data is available), is opposed to the use of military force abroad the likelihood of calls for a WPR increase. …