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

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."