Don't Look Now, but the War Powers Resolution is Working

Stephen Griffin

When I researched my book on war powers (Long Wars and the Constitution), I noticed a shift in opinion had occurred with respect to the WPR by the end of the Clinton administration.  Before then, it was commonly claimed that the WPR was washed up, even legally defunct.  During the 1988 episode in which the U.S. took military action and reflagged oil tankers toward the end of the Iran-Iraq war, senators seemed to despair about whether the WPR even applied.  But by Clinton’s 1999 intervention in Kosovo, members of Congress were actively using the WPR as a reference point in evaluating the administration’s actions, criticizing Clinton for going beyond the 60-day limit.  Perhaps it took a Democratic presidency for both parties to care about the WPR.

Be that as it may, it is striking that that the WPR’s doubting critics have never come up with criteria to support a judgment that it is legally irrelevant.  But since so many still seem skeptical, let’s turn that inquiry around – how would we know that the WPR is working?  One criterion, advocated by the eminent legal philosopher H.L.A. Hart, is when a normative requirement is a basis for criticism when it is violated.  The existence of Hart’s famous “internal point of view” shows that the requirement in question is in fact accepted as a norm – in the case of the WPR, as binding law.  The WPR has been used multiple times in this way since at least the Kosovo intervention and probably well before.  And, by the way, it is false that “every” president has regarded the WPR as unconstitutional – not that this would make any difference.  Passed by a congressional supermajority over President Nixon’s veto and backed by overwhelming public support, it has all the legal authority it needs.

The fact is that until “Mr. Trump’s war” – a historical designation that seems to have unaccountably gone out of style – every major military action since Vietnam had been legally approved by legislative Authorizations to Use Military Force (AUMFs).  This method of legality is specifically contemplated by the WPR and, one might add, by the Constitution itself.  This certainly highlights the difference between Trump’s Iran War and the 1990 Gulf War, the 2001 9/11 War, and the 2003 Iraq War, but fully supports the legal relevance of the WPR.

And don’t look now, but Congress, controlled by Mr. Trump’s party, is creeping ever closer to influencing his ability to take further military action.  Whether Trump personally regards this as a “war” is irrelevant.  Members of Congress of both parties, guided by the norms in the WPR, regard it as such.

The WPR has clearly disappointed many people who are looking for an automatic shut off valve to use against a wayward executive branch.  But within the context of the nation’s foreign policy in which military action is just one element, this was never very likely.  Absent a more favorable reception by the executive (no president has even so much suggested useful reforms to the WPR), it nonetheless has become a meaningful tripwire for the exercise of congressional responsibility.