In the wake of the Vietnam War Congress passed the War Powers Resolution of 1973. As the history books would have it, Congress thereby restrained presidential war powers and reasserted traditional congressional prerogatives in foreign policy as envisioned by the Constitution.
Not so. Not even close to being so.
Congress did pass the War Powers Resolution, to be sure. But if anything, the Resolution — sympathetic mythology to the contrary notwithstanding — actually emboldened the president and codified executive warmaking powers that would have astonished the framers of the Constitution.
I have explained the intentions of the framers with regard to war powers here. Suffice it to say that the framers resolutely opposed placing offensive war powers in the hands of the president, and deliberately assigned such authority to the legislative branch.
The War Powers Resolution does not restore the proper constitutional balance between president and Congress in matters of war. Consider first the resolution’s provision that the president may commit troops to offensive operations anywhere in the world he chooses and for any reason without the consent of Congress, for a period of 60 days (though he must at least inform them of his action within 48 hours). After the initial 60 days he must secure congressional authorization for the action to continue. He then has another 30 days to withdraw the troops if such authorization is not forthcoming.
Until the War Powers Resolution, no constitutional or statutory authority could be cited on behalf of such behavior on the part of the president. Now it became fixed law, despite violating the letter and the spirit of the Constitution.
It so happens, moreover, that thanks to a loophole in the resolution, the 60-day clock begins only if and when the president reports to Congress under Section 4(a)(1) of the Resolution. Surprise, surprise: presidents have therefore reported to Congress in a more generic manner rather than expressly under that section. They issue reports "consistent with" rather than "pursuant to" the Resolution.
Even still, in a few cases presidents have acted as if the 60-day limit were in effect, perhaps out of political considerations (even if from a strictly legal point of view it was not). But Bill Clinton’s multi-year military intervention in Bosnia alone, without even so much as a nod in the direction of Congress, made perfectly clear that the resolution, whatever good points may be buried within it, was effectively a dead letter.
The Resolution calls for "consultation" by the President with Congress before committing troops to combat. This consultation, we are told, is to occur "in every possible instance." (Who could possibly find a loophole there?) In practice, presidents have interpreted this provision to mean that they must notify Congress following the initiation of hostilities — not exactly what its drafters probably had in mind.
Ever since the passage of the Resolution, opponents of presidential actions have sometimes followed a strategy of appealing to the courts for redress, waving the War Powers Resolution before federal judges. For a variety of reasons, these judges have hesitated to intervene in such cases. Louis Fisher and David Gray Adler, two experts on presidential war powers, have therefore suggested that the War Powers Resolution has diverted opponents of presidential wars into fruitless judicial challenges instead of simply declaring that the president’s action was unconstitutional and refusing to fund it.
Now it’s true that the neoconservatives typically despise the War Powers Resolution — and thus normal people may be inclined to support it on that basis alone — but this can only be because it appears in principle to limit the powers of the president. The neocons are gripped by a weird paranoia on issues like this. Washington think-tanks are constantly writing reports on the legislative branch’s dangerous and shocking encroachments on executive power — encroachments that exist only in the Bizarro World that our see-no-evil, truth-is-what-I-say-it-is president also inhabits.
A partial repeal of the Resolution was attempted in 1995, but the slimmed-down version would actually have accentuated presidential power and eclipsed Congress even further. House Speaker Newt Gingrich, that big opponent of Bill Clinton, called on the House "to, at least on paper, increase the power of President Clinton." Gingrich wanted to "strengthen the current Democratic President because he is the President of the United States. And the President of the United States on a bipartisan basis deserves to be strengthened in foreign affairs and strengthened in national security." Some 44 Republicans abandoned Gingrich — these were still the days when at least a few Republicans thought presidential power was something to restrain — and the effort failed.
Fisher and Adler insist that for the good of the republic, the War Powers Resolution should be repealed:
Repeal of the War Powers Resolution would eliminate the concession of 1973 that presidents may use military force anywhere in the world, for whatever reason, for up to ninety days, if not longer. There is no constitutional warrant for that proposition. Repeal would remove that source of presidential power and put an end to fruitless legislative debate over whether presidential "consultation" had been sufficient, whether presidential reports were timely and complete, and whether the president should have reported under Section 4(a)(1), 4(a)(2), or some other provision. Repeal would eliminate the current futile dash to federal court, hoping for some kind of judicial answer. Members of Congress would understand that only legislative action can stop the president: withholding funds, prohibiting certain actions, and taking other concrete measures.
A War Powers Resolution is no more necessary than a balanced budget amendment, and has proven at least as problematic. If you want a balanced budget, then submit one. And if you want to restrain the president’s power abroad, then do so — use the power of the purse to cut off funding for foreign-policy adventurism. Mere resolutions are no match for a determined executive, who can simply define "war," "consultation," and other critical terms to suit his agenda. The War Powers Resolution, in short, is just one in a long line of political gimmicks designed to give the impression that things have changed, when in fact business has never been more usual.
(On this issue see in particular Louis Fisher and David Gray Adler, "The War Powers Resolution: Time to Say Goodbye," Political Science Quarterly 113 [Spring 1998]: 1—20.)