When Congress Terminates a “War” By Doing Nothing: The 60-Day Clock of the War Powers Resolution

Rick Pildes

As the legal and political debate develops over whether the American role in the current Libya operation constitutes “hostilities” within the meaning of the War Powers Resolution (WPR), I want to shift the focus to a policy discussion of the 60-day clock provision in the WPR. With all the initial attention centered on what constitutes “hostilities,” it is easy to lose track of what’s at stake in that debate. The consequence, of course, of concluding that the Libya operation does constitute “hostilities” is that the WPR then states that the President must disengage from the actions that constitute those “hostilities,” unless Congress affirmatively acts to authorize these military operations. By design, the WPR makes Congress’s silence – its failure to act to take any position one way or the other about the Libya operation – tantamount to a decision by Congress to prohibit the United States from participating in “hostilities” in conjunction with the Libya operation. Thus, Congress’s failure to act has all the consequences, as a practical matter, of an affirmative decision by Congress to cut off the Libya operation, though without Congress actually making such a decision or having to take direct responsibility, through the act of voting, for such a decision and its ensuing consequences.

As a policy matter, is this a well-thought through and wise legal structure for dealing with such freighted judgments about the use of military force? The structure has never been tested. No President has ever withdrawn from active military engagements because the 60-day clock had run without congressional authorization; indeed, to my knowledge, no President has ever realistically been on the verge of having to do so. In all prior contexts since the 1973 WPR, the President has either received at least arguable authorization from Congress (including through the appropriations process in the Kosovo bombings during the Clinton years), the action was of shorter duration than 60 days, or the President’s claim that the action was too limited to constitute “hostilities” was widely enough accepted, particularly within Congress, even if there were some dissenting voices, that the President as a political matter did not face extraordinary pressure to disengage at 60 days in conjunction with congressional silence. Nor, to my knowledge, has a President taken the position that this specific provision, the 60-day clock, is an unconstitutional intrusion on the President’s Art. II powers, though as noted, no President has been faced concretely with the obligation to withdraw.



The wisdom of the initial decision to initiate the use of military force in any context, like Libya, is much different, of course, from the considerations relevant to deciding whether it is good policy to continue such an operation two or three months in. The consequences to international relationships, with both allies and enemies, of a US withdrawal at this moment might be substantial. If one accepts the policy analysis filed by the administration yesterday with Congress, the withdrawal of the United States from participation in NATO’s operations would seriously compromise the effectiveness of NATO’s efforts. A New York Times editorial today asserts, in fact, that the NATO operation would “unravel.” It seems fair to assume that the credibility of NATO is at stake, as well as the credibility of the President and the United States. It’s one thing for Congress to weigh these considerations and come to a judgment that the operation ought to be ended nonetheless, or that it should be continued but only under certain terms. If Congress is required to take affirmative action to end military operations of this sort, Congress would visibly bear the responsibility for that decision, in ways that would make Congress accountable for its judgment and choice. And if Congress exercises its joint responsibility with the President over “warfare” by terminating the President’s use of military force in a particular context, Congress would have the constitutional power in most circumstances, at least, to do so (I leave aside the vexed question of whether there are domains in which the President’s Art. II powers should be understood to make unconstitutional congressional legislation to terminate the use of military force).

Congress created the WPR structure, of course, out of recognition of Congress’s own weaknesses and institutional tendency to avoid responsibility over choices concerning the use of military force. Experience had taught how difficult it was for Congress to overcome collective action problems and various personal, political, partisan, and institutional interests to be able to act to challenge a President’s use of military force. As past episodes had shown, Congress tends to run away from responsibility in these situations; institutionally, Congress wants to sit back and wait and see if the operation is successful, popular, or not. Congress’s solution was to change the default rule, so that the President’s actions become unlawful, and military force has to cease, unless Congress can overcome all these interests and collective action dynamics and authorize the President’s action. But this structure replaces one kind of congressional dysfunctionality with another: the WPR structure is another way for Congress to run away from political responsibility, for the WPR enables Congress’s failure to act to become decisive. But is it a sound policymaking structure on these issues for Congress’s mere silence (or inability to act decisively) to unleash all the consequences that follow from such monumental decisions as when to terminate military operations? Ideally, it will never come to this: perhaps the structure of the WPR, the obvious urgency and momentousness of the issues, and the ability of the President to put pressure on Congress to act (should he choose to do so), will force Congress to step up to the plate in these situations and cast a substantive vote, either to authorize the military operation or to terminate it. Perhaps the WPR structure will turn out to make it too difficult for Congress to refuse to act at all. But Congress’s ingenuity in escaping responsibility should not be underestimated. During President Clinton’s bombing operations in Kosovo, for example, the House managed to vote down at the same time one resolution authorizing the operation and one terminating it. Thus, the fact that the WPR makes Congress’s failure to act legally decisive is worth serious reflection.

Other legal structures for allocating legislative and executive responsibility over uses of military force, which would not make congressional inaction decisive, are possible, at least in principle. Traditionally, one concern about requiring Congress to act to terminate Presidential uses of military force is that if Congress must act by legislating, that legislation would have to be able to surmount the inevitable presidential veto. Thus, Congress could not, in fact, terminate presidential action unless it had 2/3 support in both the House and Senate, which would never happen except for the most dramatically unpopular uses of military force. But there are several alternative structures to envision. First, perhaps the Supreme Court was wrong in the Chadha case to hold the “legislative veto” unconstitutional, at least as applied to warmaking measures; perhaps the Court should have recognized that Congress ought to be able to delegate certain military powers to the President, but be able to veto the exercise of those powers through a joint resolution of both chambers that does not require presidential approval. Second, assume that getting the Court to revisit Chadha for the context of uses of military force is not an option, it is still true that a joint resolution of Congress declaring that certain military operations should be terminated would likely have a significant effect on a President’s actions; even if that joint resolution has no formal legal effect (because it is not actual legislation), there is a good deal of evidence that congressional resistance to presidential military actions, short of actual legislation, nonetheless have significant effect in influencing presidential actions. See Douglas Kriner’s book, After the Rubicon: Congress, Presidents, and the Politics of Waging War, which documents these effects. Finally, and most dramatically, a President could announce in advance that if Congress adopts a joint resolution urging the termination of military force, he will abide by that resolution, even if he is not legally obligated to do so. In doing so, the President would signal his willingness to be bound by law in the use of military force, but through a structure of decisionmaking that would require that Congress actually affirmatively act, even through the form of a joint resolution.

Finding any effective and appropriate structure for allocating power between the President and Congress over the use of force has historically proven to be extremely complex and difficult, and no solution is going to be ideal. But as we move into debates over whether the front-end of the crucial war powers question concerning the Libya operation – whether it constitutes “hostilities,” within the meaning of the WPR – we also will gain experience with the consequences of that determination, which will enable more grounded consideration of whether the overall framework the WPR creates – in which the 60-day clock and Congress’s possible failure to act have never realistically been tested – is the best framework for presidential-congressional control over the uses of military force.
Posted 9:37 AM by Rick Pildes [link]