Sunday, June 12, 2011

The Origins of the War Powers Resolution: Some Notes

Stephen Griffin

The WPR is back in the news, despite having been declared definitely "dead" at least (by my count) on three widely separated occasions by members of Congress prior to the NATO operation in Libya. The WPR seems to be infrequently complied with, yet it is hard to kill.


I've been reviewing the early history of the WPR for a book on war powers. Looking at the historical record can have the effect of throwing blurry generalizations into sharp relief. Such as: the WPR was the result of the Vietnam war. Certainly, but it seems likely that the WPR would not have been considered by a Democratic Congress had LBJ remained president or Humphrey had become president in 1968. Even after multiple years of Vietnam, it was probable that a Democratic Congress was not going to embarrass one of its own. We owe the WPR to Richard Nixon. What made the WPR possible was Nixon's 1970 invasion of Cambodia and the cumulative effect of Nixon conducting his Vietnam policy in secret. Cambodia was a political and policy disaster for Nixon and he never had strong support from Congress again for his Vietnam policy. The publication of the Pentagon Papers in 1971 didn't help either, as it reminded members of Congress that they had been misled.


Who in Congress was responsible for the WPR? Most accounts naturally tend to focus on the sponsors, such as Senator Jacob Javits and some who actually opposed the finished product like Senator Tom Eagleton. But the conversion of conservative senators like John Stennis was equally crucial to the WPR's passage. Stennis was widely revered in the Senate, a stalwart of national defense (an aircraft carrier is named after him), yet he came to believe that the principle that Congress had to be involved with the decision to go to war had been violated too many times. This called for redressing the balance between the branches.


But this principled stand led to inattention to some other possible rationales for the WPR. What stands out after several readings of the debates is the relatively abstract quality of the rationales offered for it. There was much talk of congressional prerogatives and acquiescence to the executive in the past. There was not much discussion of how the WPR would make a concrete difference in the future. I'm sure members of Congress did not mean it this way, but to the extent they sold the WPR to the public at all, it was on the basis of getting Congress back in the game, not saving the lives of American men and women in uniform. Some greater attention to the latter would have helped build public support for the WPR over time on a bipartisan basis. While the WPR had overwhelming public support when it was passed, over time it became the object of partisan attack.


How was the WPR supposed to work? This is one of the more puzzling aspects of the WPR's legislative history. There is no doubt that the WPR was inspired by Vietnam. But would the WPR have prevented Vietnam? There was no close examination of executive decisionmaking on Vietnam and executive-legislative interaction to enable future Congresses to understand the expectations of those who passed the WPR. There was no "test bed" for the WPR, a series of historical examples designed to show how the WPR would have worked in the past. This perhaps accounts for why there was no practical implementation of the consultation requirement. Members of Congress clearly expected a different situation to prevail in executive-legislative relations after the WPR was passed. "Congress" was supposed to be consulted for its advice prior to any military action. This gave no practical guidance to presidents about who to consult and how extensive the consultation should be. Members of Congress often complained subsequently about a lack of consultation, but they had never provided much guidance as to what sort of consultation would satisfy the statute.


It's true the sponsors of the WPR did not get much help from the executive branch (despite repeated requests). Nixon stonewalled the WPR for three years. He had plenty of time to formulate a response. All he was willing to agree to were nonbinding resolutions. Perhaps he expected his veto to prevail, but in practical terms this meant there was no executive input to the WPR. Somewhat curiously, no president has ever offered help in either reforming or repealing the law, at least while in office. Presidents Ford, Carter, and Bush I contributed letters to a repeal effort in 1995 sponsored by Rep. Henry Hyde which came close to success. But if presidents have such difficulty with the WPR, if they believe it to be "unconstitutional," why haven't they been willing to step up to the legislative plate? This is one of the unsolved puzzles of the WPR.


In the next post, I'll address how the WPR became "unconstitutional."

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