Repeal the War Powers Resolution

In 2011, as the U.S. and NATO intervened in Libya, I wrote a piece for World Politics Review on the War Powers Resolution. As we approach what looks to be the use of military force in Syria, I am reproducing it here. The original can be found at World Policy Review here.

24 MAY 2011

The debate over whether President Barack Obama violated the 1973 War Powers Resolution by committing U.S. forces to Operation Odyssey Dawn, including the drama of outraged legislators condemning yet another president for disregarding this curious law, was predictable. This most recent effort, like others before it, will probably come to nothing. But the legislation itself is dangerous, and the attempts to invoke it should stop. Republicans and Democrats now have an opportunity to remove the War Powers Resolution from our national life, and they should seize it.

There is an unavoidable tension in the Constitution between the president’s role as commander in chief (Article II, section two) and the power of Congress to declare war (Article I, section eight). Although Congress controls defense funding and the Senate must approve treaties, the legislature has little power over the actual execution of military operations. In the wake of Vietnam, an angry Congress tried to settle the matter by legislative fiat with the War Powers Resolution, passed over then-President Richard Nixon’s veto in 1973. The important clauses of the resolution allow Congress to direct the withdrawal of U.S. forces from action no later than 60 days after the outbreak of hostilities, unless Congress declares war, extends the 60-day period or is unable to meet due to enemy action, such as a nuclear attack.

This constitutes a “legislative veto” over executive authority, a concept ruled unconstitutional by the Supreme Court nearly 30 years ago. The War Powers Resolution itself has never been adjudicated by the Supreme Court, and from the 1983 invasion of Grenada to the 2011 NATO attack on Libya, presidents have traditionally ignored its requirements while eventually submitting reports that are “consistent with,” but not in response to, the resolution. In the meantime, a familiar dance takes place, in which the president continues military action while any legislative opposition, otherwise powerless, briefly roils Washington for a week or two by threatening to invoke the resolution. It is a bipartisan game that is always ill-advised, even with the best of intentions.

More than 20 years ago, for example, President George H.W. Bush was convinced that Saddam Hussein’s invasion of Kuwait had to be reversed or else his entire project of building a stable post-Cold War order would collapse. Republican Sen. John Heinz conferred at the time with a group of his GOP colleagues, who considered invoking the resolution. It was the law of the land, Heinz reasoned, even if his intention was to use it as a show of support for presidential action rather than as a legal roadblock. However, after considering the many constitutional and military risks involved, Heinz discarded the idea. Bush and the country would be spared the spectacle of a national debate over the president’s powers, and Operation Desert Storm took place without further political complications.

As the aide who wrote the memo that Heinz studied, outlining the dangers posed to U.S. national security by the War Powers Resolution, I am intimately familiar with this particular historical “what if” moment.

The War Powers Resolution was a bad idea then, and it is a bad idea now. As satisfying as it might be in the short term to hobble the president, both parties would come to regret the consequences of such political combat, not least because it would shift greater responsibility for military action onto a Congress that in the long run may not want it — a point raised by then-Rep. Lee Hamilton and others during a failed 1995 effort to repeal the resolution.

Worse, the War Powers Act is dangerous to our troops and to our national security. Imagine if it were ever taken seriously as an ongoing restriction on military action: A crisis arises, and the president responds by deploying U.S. forces, perhaps to support an ally or to enforce a United Nations resolution. The clock begins ticking, and after 60 days — or sooner, if Congress so directs — the president must recall U.S. troops. Thus, the resolution in effect tells any enemy that the best strategy against U.S. military force is to hunker down and wait out the 60-day period, in hopes that the resulting political fight in Washington will be messy enough to tear apart the nation and undermine Americans’ will to fight.

It is folly to tell any potential enemy that he has 60 days to play one branch of the United States government off against another. Presidents answer to the American people and, in the most extreme instance, to the Senate during impeachment. These mechanisms do not need to be superseded by a contested law that invites the micromanagement of U.S. military operations by 535 additional commanders-in-chief.

Legislators from both parties now have a rare opportunity to exercise statesmanship. They can declare that their differences might be deep and principled, but that our political system cannot be shaken during a military conflict. A bipartisan move to repeal the War Powers Resolution — and to protect the necessary ability of presidents to engage in military action now and in the future — would send a powerful message to dictators and terrorists who have always placed their hopes, however vainly, in a mistaken belief that democracies are too divided and too weak to stop them. The War Powers Resolution should be shelved, once and for all, as a danger not to any one president or party, but to the security of the United States.

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