an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The June 15 NYT article by Charlie Savage and Mark Landler stated: "While many presidents have challenged the constitutionality of other aspects of the War Powers Resolution--which Congress enacted over President Richard M. Nixon's veto--no administration has declared that the section imposing the 60 day clock is unconstitutional." I think it's more complicated than that. I know, it's confusing! Why can't we just rely on the Carter OLC opinion that states the WPR is constitutional? The rough answer is that Republican administrations never have. There was a split in the 1980s between liberals and conservatives on the constitutionality of the WPR. That's one reason the Republican-controlled House tried to repeal the WPR in 1995. By then, plenty of Republicans thought it was unconstitutional. How did this become conventional wisdom among conservatives?
The position of presidents on the constitutionality of the WPR, including the 60 day clock, can be difficult to figure out. Keep in mind that presidents are not normally given to making statements about the scope of their constitutional powers. Each administration has no reason to put out a "white paper" or OLC opinion addressing the constitutionality of the WPR in the abstract. So I don't think we can track the position of the Reagan-Bush-Bush administrations through such opinions. A few more thoughts on methodology -- we shouldn't expect administrations to operate like the Supreme Court. I don't mean that the DOJ offers one opinion on the WPR and the White House another (oops--that just happened). I'm trying to draw your attention to the fact that at the Court, the only issues (normally) are legal. At the White House, we always have the multiple dimensions of politics, policy, and the Constitution. Constitutional, do we think the 60 day clock is beyond Congress's power given our powers in Article II; policy, what's the best foreign policy to follow regardless of what Congress thinks; political, is it necessary to tell Congress we think the WPR is unconstitutional when we could accomplish our policy end by not conceding that it is constitutional and acting as if we had the authority without saying more than the minimum required.
Now let's apply these three perspectives to the implementation history of the WPR. From a political point of view, the WPR was on the wrong side of the Republican party. It was basically a Democratic project passed over the veto of a Republican president, one considered well versed in foreign affairs whatever else we may think of him. Ford (and Cheney) believed presidential power was under attack in the mid-1970s and they had good reason to think so. Ford went along with the WPR while in office, but immediately attacked it once he was no longer president, highlighting this issue for Republicans.
The Reagan administration said little about the WPR until they encountered foreign policy difficulties in Lebanon and tussled with Congress over the Grenada invasion in 1983. Reagan issued a signing statement hinting the WPR was unconstitutional and the administration as a whole strongly attacked Congress in 1984 for interfering with presidential prerogatives in foreign policy. It's reasonably clear that administration attorneys picked up the drumbeat from there and spread the word to journalists that "no president" had ever found the WPR constitutional. From the Reagan point of view, the WPR was interfering with their ability to conduct policy, so why not lay down a marker that it was unconstitutional, given the importance of the C-in-C power to presidents?
By the Bush I administration, I see the WPR's unconstitutionality as being conventional wisdom. The end of the 1980s was also a time of widespread disillusionment with the WPR in Congress, with many declaring it a dead letter. This brings us to the Gulf War and the advice of White House Counsel Boyden Gray in an August 1990 memo to the president (I have bolded some relevant text). It's available from the Bush presidential library. Gray endorsed a very broad version of the "defensive war" rationale for presidential war powers. As long as the US is not the aggressor, presidents have the power to take the nation to war:
"Because we believe that the United States does not initiate aggression, the Executive branch has generally held that the President can order U.S. forces into combat without a declaration of war. Accordingly, we have proceeded without a declaration of war or other congressional authorization when it was politically tenable to do so, as in Grenada and Panama."
With respect to the WPR: "In the absence of either a declaration of war or a joint resolution, we would be subject to both the War Power Resolution's reporting requirement and its requirement -- which we regard asunconstitutional-- to terminate deployments into hostile situations after 60 days."
Bush's 1998 memoir makes clear he accepted Gray's analysis. He of course wanted Congress's political support and he thought it might hurt his policy in the Gulf if he didn't have it. But contrary to what many legal scholars have thought, Bush was fully prepared to launch one of the biggest military operations in recent history on his own authority as president. And no, it didn't really matter whether the operation lasted 60 days or not. I'll reserve commentary on the position of the Clinton-Obama administrations for another time, but let's just conclude with the 2002 testimony of John Yoo while serving in the Bush II administration: "This administration follows the course of administrations before us, both Democratic and Republican, in the view that the President's power to engage U.S. armed forces in military hostilities is not limited by the War Powers Resolution." Yoo may have been wrong about the Clinton administration, but he was not wrong about the Reagan and Bush I administrations. Posted
by Stephen Griffin [link]