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
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
Charlie Savage has done me the favor of responding to my post on (essentially) the constitutional status of the War Powers Resolution in Republican administrations. It's worth reading, although I suspect we are about to really get into the weeds. I'll reply after I have a chance to assemble my thoughts.
So now I'm focused, but before I reply directly to what Savage said, I'll introduce a new point, just for fun. One assumption common to recent discussion, including Savage's book, was that the WPR's 60 day limit was first exceeded only in the 1999 Kosovo operation. I'm not so sure. On a normative level, at least, if one uses the sorts of arguments that were made against the Obama administration in the context of the Libya operation -- well, the Reagan-era operation to reflag Kuwaiti tankers during the Iran-Iraq War surely qualifies. You can check out the events of "Operation Earnest Will" on Wikipedia. For those of us who were current-events junkies at the time, you might remember this was a large-scale naval operation lasting more than a year that involved exchanges of fire and...actual combat involving US personnel in harms way(!), something that wasn't true for Libya. So why didn't this raise a big WPR issue? Well, it did. In fact, this operation was one of the reasons influential members of Congress of both parties concluded the WPR was unconstitutional, defunct or both at the end of the 1980s. The dispute that resulted is well covered in Barry Blechman's The Politics of National Security.
My partisan-based approach helps explain why this didn't register as a WPR "precedent." It wasn't a precedent for Democrats because they weren't in the White House. It could have been a precedent from a Republican perspective, but it's pretty clear that Republicans already believed the WPR was unconstitutional. This takes me back to Savage's evidence.
In general, I think we should be cautious about assuming that people in the past didn't know what they were talking about. So if Republican commentators keep asserting the myth that every president has rejected the WPR (Savage's myth examples come from editorials written by lawyers who served in Republican administrations, supporting my partisan split argument), it's probably because that's what everyone around them believed while they were in power. The strategy Republican lawyers adopted in the Reagan and Bush 41 administrations is well explained in John McGinnis, 56 Law and Contemporary Problems 293 (1993). McGinnis, of course, had served in the OLC and was thus presumably knowledgeable about its precedents (he never mentions the Carter OLC opinion). McGinnis described the strategy as one of "ignoring the War Powers Resolution and casting doubt on its constitutionality by presidential declaration." Like Reagan's declaration in 1983. As I describe in Long Wars, this declaration began a sustained period of push back by the executive branch against what were seen as congressional encroachments in matters of national security. This resulted in some NYT articles (as I remember written by Stuart Taylor) that contributed to the idea that presidents had generally rejected the WPR.
One point I believes McGinnis makes is that when Republican presidents made reports to Congress about military operations, they were careful to make them "consistent" with the WPR, not in "compliance" with it, thus reserving their constitutional objections (thus showing they did have constitutional objections). That led to the oft-heard argument that the 60 day clock never started running because presidents refused to make a report under the relevant section that triggered it. I'm not sure Savage is reading that language in the same way the Reagan lawyers meant it.
But what of the status of the Carter-era opinion? Here it seems to me that Savage is slicing the legal salami very thin indeed. True, this opinion was never withdrawn. I thought the story was that until the Yoo opinions were withdrawn that OLC opinion were, well, never withdrawn. But if we are analogizing OLC opinions to judicial precedents, we do live in a common law system and there is such a thing as overruling a precedent by implication or sub silentio. Perhaps the Reagan lawyers thought the Carter opinion was not relevant because it was delivered in the abstract, given that President Carter never launched a military operation lasting longer than 60 days (or any operation, for that matter). You may say Reagan didn't either, but that's why I think the Kuwaiti tanker operation is important -- it lasted for more than a year!
As shown by Savage's myth examples, plenty of Republicans still believe in the "myth" -- because there's one legal reality in Republican administrations regarding the WPR and another in Democratic administrations. I'm happy to predict that if a Republican is in the White House in January 2017, we will again hear: "the WPR? Oh, it's unconstitutional. Everyone knows that!" Ok, it probably won't be that easy because of the Clinton-Obama OLC opinions that seem to assume the WPR is constitutional. But you get the idea.