Tuesday, June 14, 2011

What Should Responsible Journalists Say About the Constitutionality of the War Powers Resolution?

Stephen Griffin

Let's start with an example of what they should not say: "The law was passed over President Nixon's veto when Congress was incensed about Vietnam and Nixon was weakened by Watergate, and all presidents since then have considered it a usurpation of executive authority." That's respected journalist Lou Cannon, in his biography of President Reagan.

As David Barron and Marty Lederman have shown, this is wrong. Presidents Ford and Carter did not dispute that the WPR was constitutional. Carter's OLC produced an opinion saying it was constitutional. The Clinton-Obama OLCs have produced opinions that don't dispute the WPR's constitutionality. So what's going on here? When did this meme start? When did the WPR become unconstitutional according to "all presidents?"

In this post, I will try to answer these questions and provide a draft of a standard comment that journalists might think about using in the future. Many different confusions are responsible for the meme quoted above. Let's start with Nixon. He vetoed the WPR and had objected to the provision that said the president must terminate the use of the armed forces upon expiration of the 60 day clock. Congress disagreed with Nixon's argument and overrode his veto. It had suggested one constitutional basis for the WPR in the statute itself -- the necessary and proper clause. So ordinarily, this would be the end of the matter. No president could refuse to enforce the WPR without creating the kind of absolute veto that the framers specifically rejected.

Ford and Carter interacted with Congresses filled with partisans of the WPR who were vigilant, one might say hypervigilant, about enforcing it. It would not have been a good move politically for them to defy the law and they did not. During the various evacuations in Southeast Asia in spring 1975, Ford specifically stated that he would comply with the WPR. Last fall, the State Department's Office of the Historian published the final volume which covers this period in the diplomatic record of the Vietnam war. My review of those documents shows both Ford and Secretary of State Kissinger well aware of the WPR and making every effort to show Congress that they would respect the law. They were wise to do so, because they wanted Congress to approve $722 million to help South Vietnam and fund the evacuations. Ford did have his problems with the law as a matter of policy. The WPR called for "Congress" to be consulted and it was not clear how that requirement could be satisfied. After he left office, Ford claimed that he had never conceded the constitutionality of the WPR, although it is not clear what he meant by this. Perhaps I am being overliteral, but once a law is enacted its validity does not depend on presidential consent.

There are two lessons here. First, as long as there were strong believers in the WPR in positions of authority in Congress, it was not wise for presidents to throw down the gauntlet (especially if they wanted something). Tip O'Neill, Speaker of the House until 1987, was a strong proponent of the WPR. And Reagan did not throw down any gauntlet. Second, policy objections to the WPR are not the same as constitutional objections. Strange as it may seem and in spite of the popularity of the meme, there is no public "white paper" or other document one can point to in which any president actually states that the WPR is unconstitutional and makes an argument to that effect. There is a 1990 memo by White House Counsel C. Boyden Gray in the Bush I administration that I will review in the next post.

Nonetheless, the meme was a product of the Reagan era. A review of the NYT shows this pretty clearly. Reagan was put in the position of having to sign legislation in fall 1983 which invoked the WPR and authorized marines to stay in Lebanon for 18 months. His signing statement "hinted" that the WPR was unconstitutional, according reporter Stuart Taylor. Clearly, some administration officials took their cue from this signing statement and by April 1984 were stating baldly that the WPR was unconstitutional. By March 1986, the NYT was stating flatly that the WPR had been opposed by every president since enactment. And finally, in October 1987, the well-informed journalist Steven Roberts wrote an article which asked what had happened to the WPR. He claimed: "All Presidents since Mr. Nixon have challenged the constitutionality of the law."

Well, it isn't true. I'll have more to say about the argument some presidents seem to be making in another post. For now, here's my suggestion to journalists for a standard comment on the WPR:

"While President Nixon objected to the WPR on constitutional grounds, his veto was overridden by Congress. Presidents Ford and Carter accepted the law's constitutionality while in office, although they doubted its practicality in some respects. President Reagan was the first to indicate a possible constitutional objection after the WPR's enactment, but he provided few details. His Department of Justice never filed a formal opinion challenging the law. No president has proposed that the WPR be repealed."


How about this?

"Nixon vetoed the WPR on the ground that it violated the President's war authorities, but two-thirds of Congress overrode him. Every President since has refused to acknowledge the WPR's constitutionality, and several have undertaken action in violation of its terms. In these conflicts, Congress chose to allow the President to take the initiative in war-making but also to suffer the political consequences alone."

In Lou Cannon's defense, considering something a "usurpation of executive authority" is not necessarily the same thing as saying it is unconstitutional.

Is the small font necessary?

That a President ought to be held to the conception of Executive power he proclaimed before he was President?

Is Brett cherry-picking Glenn Greenwald on this issue or was Brett of a similar mind during the Bush/Cheney eight (8) years?

The experience of being President in the C-I-C role differs significantly from serving in Congress. I express no opinion on the constitutionality of the WPR. The power of the Executive is not that clear in the Constitution when it comes to acts that might constitute war, however war is defined. Fortunately, there are several serious scholars addressing this matter. Military actions of the past may provide support for the position of Obama in the Libya situation. But I'm skeptical of the "no troops on the ground" reliance of the Administration. Since the Cold War ended, the world is a messy place, especially since 9/11. Some form of international order is required in situations such as this. Unfortunately, the UN has not been that successful as the appropriate forum. Present day technology presents problems not even considered at the time of the framing of the Constitution. Clarifying the Constitution by amendment regarding such conflicts would take too long to address immediate concerns. So perhaps the Executive acting RESPONSIBLY needs some leeway - but not too much.

By the Bybee (*^&%^$%#@$), I recently learned of Paul Finkelman's take on Article V of the Constitution as mathematically serving the interests of slaveholders and slave states during the framing.

Obama didn't "unilaterally" authorize the Libya attack. The actual context of the 2007 statement was bombing Iran on one's own, not as part of some NATO or UN authorized measure.

I don't think Obama is correct here but the earlier statement is not as "clear" as Glenn Greenwald makes it out to be.

I think Shag's defense of Obama is better than Joe's. If one reads the full question and answer that Greenwald cites, it seems clear that Obama is using the word "unilateral" to refer to executive action unauthorized by Congress. If he intended the word "unilateral" in a different way, he must surely have realized that he was misleading the readers.

The most plausible explanation is that Obama said what he believed (or, less charitably, what he thought people wanted to hear) during the campaign, but discovered that things were somewhat more complicated when faced with the actual responsibility of being president.

It might "seem" clear to you but the very use of the word underlines that it "surely" open to debate.

Obama, though this is true with politicians in general, repeatedly carefully phrased answers to not state things in open/shut ways. For instance, not against ALL signing statements.

There was a major concern that the President would unilaterally bomb Iran after the U.S. unilaterally (though that time with congressional action) invaded Iraq. That this means that Obama meant he could not take part in a greater NATO and UN action pursuant to some earlier treaty arrangement is an assumption.

Some point to just such laws that would apply here, including those that would deal with the "emergency" of an imminent threat to the Libyan people. Obama also pointed to some "imminent" threats to our nation arising out of the unrest there.

People later finding things more complicated when President is quite common too.

I'm even more skeptical after reading William J. Astore's TomDispatch essay of 6/14/11 titled: "Siamese Twins Sharing the Same Brain - How the Military and the Civilian are Blurring in Washington."

Back in 1950 in college when the Korean "Conflict" broke out, I couldn't understand why there wasn't required a declaration of war by Congress. The phrase "police action" was used as well as the UN's role. There were plenty of troops on the ground for that "Conflict" that avoided the word "War." What might have happened if Truman had gone to Congress for a declaration of war? This was only a few years after WW II officially closed and there was a humongous Marshall Plan underway in Europe. The Cold War was in its early stages.

Since then, there have been many more "conflicts," some major and some minor. While there are no troops on the ground in Libya, if there is not "victory" then what is the alternative? Fly away?

R. B. Bernstein in his recent article "The Constitution as an Exploding Cigar and Other 'Historian's Heresies' About a Constitutional Orthodoxy" (a link is available at the Legal History Blog), points to this unclear constitutional issue:

"What does it mean to 'declare War'? What are the powers of the President as commander-in-chief of the armed forces of the United States? Can the President commit us to war without Congress declaring war?"

As I noted in an earlier comment, perhaps the President acting RESPONSIBLY should have some leeway. But Congress must belly up to the bar of reality in debating the issue RESPONSIBLY and not for partisan purposes. Maybe (as a long time business client of mine used to say) it's time to yell "TILT." Alas, the problem is with the word RESPONSIBLY for both the Executive and the Congress.

Recall George W. Bush's National Security Strategy of October 2002: "We're #1 militarily, economically and politically and we'll do whatever it takes to remain so." [That's my shorthand version.] Pre-emptive self-defense was also stressed. Of course, the centerpiece is America's "National Security Interests" which change over time (perhaps from current energy needs to drinkable water in years to come, assuming global warming doesn't get us first?).

Black letter law doesn't resolve the issue. While haste makes waste, he who hesitates is lost. Thus, a dilemma. There are signs that this issue may come to the forefront of the 2012 election campaigns, which would not solve America's and the world's economic problems.

I was 20 years old in 1950 when I couldn't understand why there was not a need for Congress to declare war. While I was subject to the draft, I had my deferment and continued on with college and law school without belaboring this.

Now, in my 81st year, my doubts are greater yet, even though there are no troops on the ground - yet. Without "victory" in Libya (i.e., the ouster of Quadaffi, can we expect an American President to just "Fly Away"? Imagine the political ramifications in this day and age of ultra partisanship.


The black letter law is plain.

To declare war is to give the president permission to go to war. This implies that an enemy has not already started a war against the US and that declarations are only necessary for offensive wars.

War is pretty damn clear - military operations against an enemy.

The President may not constitutionally start a war without a declaration.

The problem here is that the Founders did not put an enforcement mechanism into the declaration clause because they did not foresee a large standing army and assumed that Congress would have to fund a mobilization to go to war, making the declaration a formality.

Congress could enact a law pursuant to the N&P Clause to enforce the Declaration Clause forbidding the President from initiating military operations (as opposed to defending against an attack) until Congress declared war and make violation of the law a high crime punishable by impeachment.

That would draw a very clear line in the sand for a scoflaw President like Obama.

Simple is the black letter law according to our yodeler. But our yodeler is not an equal opportunity applier as he draws:

" ... a very clear line in the sand for a scoflaw President like Obama."

and ignores Bush/Cheney actions in their eight (8) years, many of which were based upon lies, including damn lies, a much more "impeaching" argument against them in comparison to Obama vis-a-vis Libya. Let me count the ways in comparison, with the deaths and injuries of so many in Afghanistan and Iraq ....

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Your focus here is on the way Congress other poultry responsibility, and what you've stated 's all too correct. Nonetheless, your Supervision can also be ducking accountability. That has never requested virtually any indication of Congressional help; on the contrary, it's got positively prevented doing so (in doing what generally seems to us to be a flimsy justification). This particular failing by the Management reinforces the wisdom with the go delinquent dog collar guideline in the WPR.

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