The War Powers Resolution: A Rationale for Congressional Inaction

Parameters, Spring, 2001 by Timothy S. Boylan, Glenn A. Phelps

Nearly three decades ago Congress overturned a veto by President Nixon and passed the War Powers Resolution of 1973. Supporters of the resolution took heart that Congress was, at last, challenging the increasingly unilateral exercise of presidential power in matters of war and peace. The most enthusiastic proponents of the resolution believed that it would reinvigorate a legislative branch which, through a half-century of depression, world war, and nuclear anxiety, had gradually ceded many of its constitutional prerogatives to an executive branch willing to take them on as its own. The Vietnam War had marked the nadir of congressional influence in foreign affairs. While few blamed Congress directly for involving the nation in that war, the conflict had highlighted the growing irrelevance of the first branch of government in foreign policy matters. The War Powers Resolution (also commonly called the War Powers Act) was supposed to change all that. Congress would no longer be satisfied with nipping at the heel s of the leviathan as it strode uninterrupted toward an era of the "imperial presidency." It would stand as a full constitutional partner of the President and presumably ensure that future military interventions, because of the shared institutional responsibility, would be more rare, more consensual, and therefore more legitimate.

After almost 30 years and dozens of instances involving the use of the US military in hostile settings, how has the War Powers Resolution fared as way to bring about collective judgment and renew the participation of Congress in matters of military conflict? Have the requirements and mechanisms of the resolution fulfilled the intent of the Constitution? What results have been brought about by this decisionmaking framework? And were these the intended results?

The four requirements of the War Powers Resolution were intended to promote collective judgment when the nation was faced with issues of war or potential hostilities and to provide procedural mechanisms that would be activated in case of presidential noncompliance. [1] The resolution envisioned a sequence of events when military action was contemplated. First, a requirement for the President to consult with Congress would alert the latter that force had been used or was expected in a given context. Second, the specific reasons for the action and the justifications for it were to be provided to Congress through a report from the President. Whenever possible, the President was to make this report within 48 hours of taking any action or making a tactical decision, thus starting the "clock" for Congress. [2] Third, Congress would have 60 days to debate the President's action and decide on its legitimacy and legality. However, if Congress did not make any decisions or take action--even, in fact, if Congress ignor ed the issue for two months--there were still to be consequences. If no express authorization of presidential action were forthcoming, the military forces would have to be withdrawn at the end of 60 days, though the President might submit a request for a 30-day extension of this deadline. Fourth, Congress retained the power, through the passage of a concurrent resolution, to direct the President to remove military forces at any time during the 60-day period. [3]

Using the text of the War Powers Resolution and three important military engagements in the 1980s and 1990s, this article will evaluate the following three areas of concern: communication, and its implications for conducting policy involving the use of force; timing, both as it touches domestic debate and foreign actions; and the representative mandate of Congress, which should be at the core of any evaluation of the law.

The Persian Gulf, 1987: Procedural Mechanisms and Stubborn Realities

Looking at the history that preceded the passage of the War Powers Resolution and the intent of its framers, the communication requirement of consultation and reporting envisions only two parties: Congress and the President. The consultation provision sought to balance the need of the President for secrecy and unity in tactical command with the need of Congress to debate, seek consensus, and provide authorization. This is the only requirement before the initiation of hostilities, yet its language stops short of providing the President with a pre-authorization for use of force. Section 3 reads:

The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations. [4]

Nevertheless, the 27-year history of the consultation requirement has been one of presidential lip-service and congressional acquiescence. During a June 1995 House debate over legislation to repeal the War Powers Resolution, one Representative noted that there had been 40 incidents since passage of the resolution in which there had been an identifiable consultation between the President and Congress over uses of force in foreign settings. The record of presidential communication had been extensive. However, it was also noted that these communications, for the most part, had been presidential exercises in telling the Congress what had been already decided and done, not invitations for Congress to join in the decisionmaking process. [5] The Representative's conclusion was that the consultation requirement, by itself, did little to inhibit presidents from unilaterally deploying armed forces into hostile settings.