Balkinization  

Friday, June 17, 2011

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 No President has ever withdrawn from active military engagements because the 60-day clock had run without congressional authorization; indeed, to my knowledge, no President has ever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.

Comments:

One also might question whether Chadha really matters in this context because the courts wouldn't hear a dispute between Congress and the executive anyway. If the WPR was re-worked with a one-house veto provision, there could be alternative enforcement mechanisms, such as congressional rules that would lead to a cutoff in funding.
 

It seems to me that the WPR fits perfectly the basic design of the Constitution, namely that the commitment of military force requires Congressional approval. We do want the Executive to be flexible enough to defend the country if an immediate vote isn't possible, but that's merely an exception and doesn't affect the fundamental rule.

Your focus here is on the way Congress ducks responsibility, and what you've said is all too true. However, the Administration is also ducking responsibility. It hasn't asked for any sign of Congressional support; to the contrary, it has actively avoided doing so (with what appears to me to be a flimsy excuse). This failure by the Administration reinforces the wisdom of the default rule of the WPR.
 

The Constitution only provides Congress with two powers concerning the prosecution of a war:

1) Declaration of War: This is a permission to the President to begin an offensive war. The modern version of this is the AUMF. Apart from the2001 AUMF against al Qaeda, Declarations have been limited to war against nation states - like Obama's war against Libya.

2) Budget: Congress can decline to fund a war.

These powers were sufficient when the US did not maintain a large standing military and Congress had to appropriate finds to start a significant war. Today, the President has a large standing military with sufficient resources to execute a medium size war without bothering with Congress.

The WPR has no basis in either one of these powers. In particular, Congress has no power to compel a President to end a war apart from the indirect means of defunding it or perhaps impeachment.

From a practical perspective, allowing Congress to stop a war in mid-conflict by simply doing nothing has to be one of the worst ideas ever enacted by Congress. Apart from giving an enemy instant victory, disengaging suddenly from an active conflict is one of the most dangerous military operations for our troops.

No President in his right mind is going to comply with this WPR provision.
 

The statement at the end of the second para. is a little too broad. That's also what the recent NYT story said, I believe. But Nixon did make clear that he objected on constitutional grounds to any clock. Reagan hinted at it. I'll show in my next post that this became conventional wisdom in Republican administrations, at least in private opinions. But there isn't an OLC opinion or something of that nature.
 

I eagerly await Stephen Griffin's next post that will follow up on his comment just above.

But I wonder if our yodeler is echoing the Tea Party's position with his comment. I think not, although he seems to frequently identify himself as a spokesperson in many of his recent comments. Rather, I think our yodeler, and many on the right, looks upon this not in a principled constitutional manner but as a means to limit Obama to one term. After 8 years of Bush/Cheney and the controversies of the power of the Executive, some of us thought (in song parody) that "There will never, ever be another Yoo." Alas, we may not be so fortunate. I can anticipate pundits and pols "Rehabilitating John Yoo" - as well as Bush/Cheney. One term wouldn't be the worst thing in the world - that would be the thought of who might beat Obama. So far there's a drought of RESPONSIBLE opponents on both sides of the aisle. And Congress is an empty suit.

I'm somewhat depressed. But Dick Cavett's NYTimes Opinionator column today at its website "Waiting (and Waiting) in the Wings" about his attendance of "The Book of Mormon" reminded me to keep things in perspective. Maybe what we need is a musical "The Book of War" with a subtitle from the song (and Seinfeld) "War, What is it Good For? Absolutely Nothing."

By the Bybee (speaking of *^&%#$@ John Yoo!), I note a timely revival of Ike's departing military-industrial complex speech.
 

The NYTimes reports that Obama "overruled" two top lawyers in the Administration but had the support of Harold Koh (and Robert Bauer). Let's connect the dots:

YOO! KOH! O, NO!
 

Shag:

The NYT report is unsurprising. Obama and Koh believe in asking permission to go to war from the UN and not Congress. Going to Congress implies that the US can go to war unilaterally.
 

The NYT says the following: "It remains to be seen whether majorities in Congress will acquiesce to the administration’s argument, defusing the confrontation, or if the theory will fuel greater criticism. Either way, because the statute does not define hostilities and the Supreme Court has never ruled on the issue, the debate is likely to be resolved politically, said Richard H. Pildes, a New York University law professor."

This is certainly an accurate statement. But Jack Goldsmith interprets this as meaning that Professor Pildes believes that the question of whether there are "hostilities" in Libya within the meaning of WPR is a difficult or close one. That doesn't necessarily follow. Is Goldsmith right?
 

This comment has been removed by the author.
 

What Prof. Pildes said is realism, since politics in this day and age could be defined as hostilities. mls is looking for a "right" or "wrong" vis-a-vis Pildes and Goldsmith, but there are many shades of hostilities.

And I remind our yodeler that what constitutes "war" is not clear constitutionally in the context of Libya at least. If the issue reached the Court, one could expect, at a minimum, hostilities.

9:40 AM
 

I agree that what I quoted earlier is realism (as I said, the statement is accurate). Having gone back to Goldsmith's original post, I see that he quotes Professor Pildes as saying the following: “There is no clear legal answer. The president is taking a position, so the question is whether Congress accepts that position, or doesn’t accept that position and wants to insist that the operation can’t continue without affirmative authorization from Congress.”

The NYT story that Goldsmith linked to does not appear to have that quote in it, but perhaps an earlier version does. Anyway, my question is whether Pildes believes that there is "no clear legal answer" regarding whether Libya constitutes "hostilities" within the meaning of the WPR.

Shag notes that there are "many shades of hostilities." Not sure what this means, but I wonder is he is starting to see Yoo's side of things?
 

Professor Balkin (not taking comments as usual) makes the comparison between the process followed by Bush and Obama with regard to getting legal advice. This is a fair point, but it strikes me that it is not the central issue. If one concludes that the Obama legal position is a "reasonable" one (whatever that might mean), quibbles with the process followed are not going to have much resonance.

OTOH, if one concludes that the Obama position is unreasonable (or perhaps, more to the point, exactly as reasonable or unreasonable as the position taken by the Bush administration in the torture memos), then the fact that Obama, like Bush, followed a process designed to get the answer he wanted takes on more significance.
 

I would also note that Obama previously overruled an OLC opinion when it came to the issue of DC voting rights. OLC said that the bill was unconstitutional, and Holder and Obama decided that they did not agree. I am not sure that this process is any more confidence-inducing than the one followed with regard to the WPR.
 

The fact one might think Obama's ultimate decision is "reasonable" (which is different than right) can still mean that one is concerned about the process used to reach that decision.

I can make a reckless financial decision and it might turn out okay, but it still doesn't mean making it on my own (especially if it serves as a precedent) was a good idea.

And, the DC voting case is different too. There, it seems, an expert opinion was obtained the normal way but it was rejected. Since the buck stops with the POTUS, not the OLC, that sometimes is going to happen. The POTUS isn't a rubber stamp.

The reason for rejected expert advice would have to be examined. Sometimes, we override the decisions of our CPAs, lawyers or whatever. The fact we carefully obtained their advice first still is better than cherry-picking from useful yes men idiots to show "see, I'm just following the experts."
 

Let me steal Joe's language:

" ... cherry-picking from useful yes men idiots to show 'see, I'm just following the experts.'"

to describe George W.'s Yoo for mls. No shade protects Yoo and his inscrutable version of the Cheney Water Torture.
 

Joe- I don't disagree with what you are saying. But lets be honest. There is simply no way that Obama was going to accept legal advice that he needed to withdraw from the Libya mission, even if if every lawyer in his administration said that he had to. The only question was what process/legal rationale he would adopt to justify the pre-ordained conclusion.

This is just realism.
 

Shag- I am sure that once you have thought about it, you will be able to come up with a way to distinguish Yoo from Koh. Something clever, if not particularly relevant.

Also, . . . "inscrutable"?
 

Realism is that most hard cases are cases where there is a way to defend each side. It is not likely that there was no lawyer who supports the position. Obama is acting this way because there IS some reasonable types who think he is correct.

This fact is by itself troubling. The true case where no lawyer will support him but he will act anyway (the bipartisan DC voting bill not being one of them that Hatch supports not one of them) is one of those amusing thought experiments.
 

Joe- lets see. Obama's position is reasonable because it is defended by "reasonable types" (eg, Harold Koh).

But what about Yoo, Bybee and others who defended Bush's position on waterboarding? Aren't they "reasonable types"?

Of course not, because they defended a position that isn't reasonable.

Can't argue with that.
 

"inscrutable" was used to modify "Cheney" to capture Yoo's mindset without offending anyone, other than perhaps Yoo, or mls. As to an effort at being clever, perhaps mls missed this from my earlier comment:

"YOO! KOH! O, NO!"

Say it fast and just "Imagine" musically. (Koh can distinguish himself from Yoo, if he wishes.)

Yes, I am at times the "irrelevant" in the room.
 

Let's see what I said. No, didn't say Obama's position here was reasonable.

Said that reasonable types can be found to support it, so your thought experiment of him ignoring every lawyer around is just that.

Shag is the one who brought up Bush. Play with him. But, yes, I would have said the same thing there. Bush didn't have to unilaterally act w/o any lawyer supporting him. There were lawyers that seemed reasonable enough that went along with him.

This doesn't mean the position he took was reasonable under the law. The fact you can find some useful idiot support a position doesn't suddenly make it "reasonable" in a legal sense.
 

John Yoo has been a topic of discussion at this Blog for many years regarding his service on behalf of the Bush/Cheney Administration. It is difficult ignoring John Yoo with respect to the current situation addressed by this and other recent posts on the WPR and the Obama Administration's Libya involvement. Just a few weeks ago I read Lawrence Rosenthal's "Those Who Can't, Teach: What the Legal Career of John Yoo Tells Us About Who Should Be Teaching Law" available via SSRN at:

http://ssrn.com/abstract=1630574

This sobering article is about 70 pages in length but well worth reading. Legal academics serving in the Obama Administration planning to return to teaching might benefit from the article.
 

Rosenthal’s article is interesting, but his conclusion seems an odd one to draw. I agree with him that law schools should do a better job at training lawyers for practice. It seems logical that this goal would be at least somewhat advanced by having more professors with “real world” legal experience. But neither of those conclusions seems to follow from the fact that John Yoo did a bad job at OLC (except perhaps to the extent that one could blame this on Yoo’s own education). Nor does it make much sense to me to say that Yoo is therefore “unqualified” to teach law. Wouldn’t he at least be more qualified than those of his colleagues who have absolutely no “real world” experience?

One would expect that the conclusion of this article would have not to do with qualifications of law professors, but with qualifications for serving at OLC (or in similar positions where a lawyer is exercising a great deal of responsibility without supervision). Thus, one would not want a lawyer with primarily or solely academic experience serving at the top levels of OLC, or other top jobs at DOJ. Or in top legal positions at other federal agencies. Or as federal judges.

It would also suggest that if a legal academic were to find himself in a position where he had final decisionmaking authority on a major legal question (like, say, whether a military operation constituted “hostilities” within the meaning of the WPR) as a result of having been elected to the presidency, he should not rely too heavily on his own judgment.
 

mls with the closing paragraph of his recent comment seems to be "playing" with Obama. While Obama had at one time been a teacher of the law (I hesitate to say a "professor" to avoid the usual diatribe regarding his title when teaching), his situation was in no way comparable to that of Yoo. Keep in mind that Yoo was never elected to any political office. Yoo was a hired hand of George W. Bush, who himself lacked a legal background and a legal sense as well demonstrated by his hiring of Alberto Gonzales in various important legal capacities in his Administration. Any suggestion by mls that Obama, with his legal and political backgrounds, " ... should not rely too heavily on his own judgment."

is without merit, especially since his own judgment has the benefit of many inputs that a John Yoo in OLC would not have had. Frankly, I think mls misreads (assuming he did read its entirety and not just the conclusion - actually, there is no separate "Conclusion") Rosenthal's article. It should be noted that Rosenthal's article was written before the current brouhaha about Libya. Methinks mls is somewhat protective of Yoo and the reliance of Bush/Cheney on his "expertise" on the powers of the Executive.

Rosenthal devoted about 45 pages of the article in its Part I. to "The Legal Work of John Yoo" before getting to Part II. "The Role of Professional Ability in the Teaching of Law." While Part II is quite valuable with respect to legal education, the details of Part I should serve as a lesson for those legal academics in Obama's Administration. mls has not indicated that he is in disagreement with Part I.
 

Today's NYTimes (6/19/11 - Happy Father's Day to all the dads) features an oped by Mark W. Everson titled "Lawyers and Accountants Once Put Integrity First" that I thought might relate to the situation we having been discussing. I liked to think of myself as sort of a gatekeeper in the practice of law when I started in 1954. Times have changed. I don't know if law schools share some of the blame. I took an ethics course as an elective in my third year of law school. I don't know if ethics courses are offered today. Over the years I noticed changes in both the legal and accounting professions. I still believe most attorneys and accountants act ethically in their practices. But there are some rotten apples, perhaps enticed by financial considerations. The financial meltdown in 2008 surely resulted to a certain extent from failures of gatekeepers of many professions, not just legal and accounting. With regard to taking corrective steps, I am reminded of the old Greek saying that Mike Dukakis would refer to: "The fish rots from the head down."
 

I think the RPT is well suited to the basic design of the Constitution, that the commitment of military force requires congressional approval. We do not want the executive to be flexible enough to defend the country if an immediate vote is not possible, but this is an exception and does not alter the basic rule. His paper focuses on how Congress ducks responsibility, and what you said is very true. However, the government is avoiding responsibility. He asked no sign of support in Congress, however, avoided doing (with what sounds like an excuse brittle). This failure of government reinforces the wisdom of the default rule of the RPT.

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