Inadvertent Implications of the War Powers Resolution
Newton, Michael A., Case Western Reserve Journal of International Law
The constitutional infirmity of the War Powers Resolution has been uniformly demonstrated by more than four decades of bipartisan experience. The Resolution manifestly fails to eliminate the healthy inter-branch tensions that are in our constitutional DNA with respect to military deployments. In its context, the override of President Nixon's veto represented little more than a stark act of congressional opportunism. The President's veto message was prescient in warning that the Resolution is "dangerous to the best interests of our Nation." This article suggests that the act represents an attempted abdication of the enumerated obligation of Congress to oversee military operations via the appropriations power. It describes reasons why our republic would be well served by clear-eyed reassessment of the War Powers Resolution. It spawned three serious defects: 1) it displaced good faith dialogue between the co-equal branches with after the fact litigation, 2) it highlights American political will as the weakest strand of otherwise formidable military capacity, and 3) it creates a perverse inventive to reverse engineer military operations based on statutory language in ways that undermine strategic objectives. American lives and interests are ill-served by these inadvertent implications.
CONTENTS I. INTRODUCTION II. JUDICIAL AVOIDANCE OF WAR POWERS ISSUES III. HISTORY THE WAR POWERS RESOLUTION AND THE DEBATE OVER EXECUTIVE AUTHORITY IV. RAMIFICATIONS OF THE WAR POWERS RESOLUTION A. President as Litigator-in-Chief B. US Enemies' Ability to Manipulate American Political Will C. Restrictive Rules of Engagement at the Expense of Achieving Strategic Objective V. CONCLUSION
The constitutional infirmity of the War Powers Resolution. (1) the Resolution) as a statutory straitjacket on executive authority has been uniformly demonstrated by more than forty years of practice. The Resolution has nonetheless exacerbated three profoundly dangerous trends in the context of modern military operations. Since its adoption on November 7, 1973, there are few people who have criticized that legislation with more insight or persistence than my distinguished co-panelist Bob Turner, who has reiterated today his verdict that the legislation was a fraud. (2) I prefer to view the legislative effort to circumscribe the Commander-in-Chief's constitutionally mandated authority as a feckless effort at modern constitutional revisionism. Indeed, the inadequacy of the Resolution for the purpose sought by its proponents was evident almost from the outset. Congressional arguments that the executive power operates under the bonds of legislative handcuffs are accordingly misplaced. Successive executive branch declarations, most recently President Obama's defense of the use of American power over Libya to aid those rebel forces seeking to overcome the tyranny of Muammar Qaddafi, make the Resolution itself something of an archaic expression of an earlier era of American politics. Implicitly conceding their own inability to overthrow the constitutional order, a series of bipartisan congressional actions have implicitly reinforced the impotence of the Resolution with startling clarity.
II. JUDICIAL AVOIDANCE OF WAR POWERS ISSUES
The Article III courts have uniformly elected to remain aloof from the legislative-executive struggle. Though this is a subject rich with irony and legal nuance, the interests of time permit me to describe only three such instances, the legal issues surrounding 1) the NATO campaign in Kosovo; 2) US military engagement in Kuwait; and 3) the policy of targeted bombing under President Clinton.
The NATO air campaign against the forces of Slobodan Milosevic began on March 24, 1999 without any formalized expression of congressional support and prior to the subsequent action of the UN Security Council. As a matter of international law, the Kosovo campaign was hotly contested given that it proceeded without either Security Council authority or a basis derived from a clear and imminent need for national self-defense. …