The War Powers Resolution: A Rationale for Congressional Inaction

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

A week later, the Senate found a way to table a long-standing bill that would have authorized the deployment of US armed forces in Yugoslavia. The final decision of the Senate was not to decide. One influential Senator--John McCain--was able to summarize both what had happened in the House and what was about to happen in his own chamber:

Last week, a majority in the other body sent just such [an ambiguous] message to our servicemen and women, to the American public, and to the world. They voted against the war and against withdrawing our forces. Such a contradictory position does little credit to Congress. Can we in the Senate not see our duty a little clearer? Can we not match our deeds to our words? [28]

Apparently not. The vote to table the resolution on the following day provided the answer.

Conclusions: Procedure and Policy

The War Powers Resolution sought to reinsert Congress into the authorization and approval of the use of military force. It attempted to walk a fine line between the requirements of the Constitution and the political and security realities of the late 20th century. If the power vested through the appropriations process had passed into an age of automatic appropriations, then the War Powers Resolution emerged to guarantee after-the-fact control of military forces once deployed by the President. The intent was that the provisions and mechanisms introduced by the War Powers Resolution would redress the imbalance of power created by the nuclear age and the "pax americana."

It didn't. And that is the crux of most appraisals of the War Powers Resolution. We contend, however, that the resolution's departure from its original intent and purpose has not been only a matter of "unintended consequences." Rather, the resolution has altered legislative and executive relations in ways that have been not only unintended, but detrimental. Presidents have reshaped the communications requirements to report decisions and actions already taken and to "go public" on television to solidify popular reaction and support. Congress has condemned this modification of the consultation and reporting requirements, but has done little to directly challenge it. Presidents have ignored the 60-day clock and have asserted their power as Commander in Chief to direct US forces abroad. Congress has condemned such actions, but has, through delay and deferment, resisted sending legislation to the President for possible veto. It has not exercised--and has seldom even threatened to exercise--the power of the purse once the President has taken action.

These are procedural issues that point us to a more core constitutional problem: that deference, delay, and lack of confrontation has substituted alliance with public opinion for fulfilling constitutional responsibilities. John Hart Ely has concluded that Congress

... has left it at simply hemming and hawing, sidetracking resolutions to start the sixty-day clock with incomprehensible "points of order," passing resolutions to similar but not identical effect in the two houses and then being "unable" to reconcile them until the war was over, or more often, just doing nothing. Of course this is just a reversion to pre-resolution form--letting the President initiate military action while retaining for Congress the options (depending on how the war went) of pointing with pride or viewing with alarm. [29]