war on the rocks

The Strategist’s Guide to War Powers

September 9, 2013

President Obama’s decision to seek Congressional authorization for punitive strikes on Syria conjured criticism from interventionists and isolationists alike.  For the former, the move marked a dangerous abdication of executive power telegraphing indecision to a despotic regime.  For the latter, it vindicated efforts to restrain an imperial presidency run amok.  Framed by the internecine struggle between Republican Senators John McCain and Rand Paul, the debate emerging within Congressional ranks cast renewed light on the balance between the Legislature’s prerogative to declare war and the Executive’s power to wage it.  Americans should greet this drama with healthy skepticism.  Where breathless experts and partisan pundits see a constitutional crisis, the Framers would swiftly find the process they designed.

That balance between declaring and waging war is a delicate one, to be sure.  In the days preceding the President’s decision, observers of all stripes invoked 1973 War Powers Resolution to cajole the White House into consultations.  Recalling the Korean and Vietnam wars, some warned that limited engagement could lead to protracted conflicts.  Others cited interventions in Kosovo and Libya to cast airstrikes on Syria as an unconstitutional usurpation of Congressional power.   Despite their message, however, most these arguments drew on historical analogies rather than legal analysis.  And it doing so, they underscore the War Powers Resolution’s political, rather than constitutional, purpose.

Enacted over a presidential veto, the War Powers Resolution prohibits the Executive Branch from undertaking foreign military operations unless there is a formal declaration of war, prior statutory authorization, or an overt attack on U.S. forces or territories.  The purpose of this prohibition is to “insure that the collective judgment of both the Congress and the President will apply to the introduction of [the] United States Armed Forces into hostilities.”  To that end, the law requires the President to consult with Congress before committing U.S. forces, to notify Congress within forty-eight hours after committing forces to the field, and to maintain these consultations as long as military operations are underway.

The War Powers Resolution also sets deadlines, requiring the President to withdraw U.S. forces within sixty days if he does not obtain legislative authorization.  Add a thirty-day withdrawal period, and these requirements appear to prohibit the Presidential from unilaterally engaging in elective wars while limiting the duration of responsive military engagements to a mere three months.  Most significantly, the War Powers Resolution states that Congress can compel the President to withdraw at any time by passing a concurrent resolution to that effect.

At first blush, these provisions appear consistent with Congress’ power to declare war, suppress insurrections, and repel invasions.   They also had a laudable purpose.  Framed by skepticism regarding the U.S. role in Vietnam and fueled by revelations surrounding President’s Nixon’s secret bombing campaign in Cambodia, Legislators hoped to restrain Executive excesses and reassert their co-equal status.  Yet the remedies imposed under this law present their own constitutional concerns.  And while some administration may behave in a manner consistent with the War Powers Resolution, every President since Nixon has argued that it is an unconstitutional infringement on Executive Branch authority.

The rationale behind this argument is both practical and precedential.  From a practical standpoint, Presidents seek the broadest possible discretion regarding the threat or use of force.  No Commander-in-Chief changed with deterring adversaries and defending the national interest wants to be shackled by Congressional committees or held to an arbitrary ninety-day deadline.  In their view, waging war means executing—deciding, acting, and adapting to changing circumstances in real time.  And to the extent that the Resolution restrains such execution, Presidents view it as an unconstitutional infringement on their authority as Commander in Chief.

The precedential element is also important, particularly with respect to Congress’s use of to so-called “legislative veto.”  Unlike acts and joint resolutions, concurrent resolutions are not presented to the President for his signature, cannot be approved over a Presidential veto, and do not carry the force of law.  They are, in essence, a statement of Congressional sentiment.  This means that a concurrent resolution directing the President to withdraw military forces or suspend military operations would be a political, rather than legal act.  More significantly, it means that Congress cannot pass a law circumvent the lawmaking process.  To transform a non-binding statement into a binding statute, Congress must put its measure before the President.

In this sense, the War Powers Resolution encapsulates the tensions inherent in the separation of powers.  Congress can declare war, but cannot direct Presidential decision-making.  Congress can impose restraints, but not without a supermajority or Presidential assent.  Most significantly, Congress can exercise the power of purse, provided it is willing to undermine missions the President has already undertaken.  In short, Legislative power is already tempered by Executive authority, and vice versa.  And to the extent that the Federal Judiciary considers conflicts arising under the War Power Resolution, it routinely concludes that these disputes pose political questions best left to the political branches.

This judicial forbearance carries broader significance.  To the extent that the War Powers Resolution encourages consultation and collaboration between Congress and the President, it closes the distance between them and serves a desirable strategic end.  Yet to the extent that the statute exacerbates political or institutional disputes between the branches, it will invariably trigger the checks and balances already inherent in the separation of powers.  Distinguishing between these circumstances is crucial.  Although the War Powers Resolution defines how Congress and the President interact in times of war, it cannot redefine the character and scope of their respective authority. To assert otherwise elevates specific political outcomes above constitutional process.

This emphasis on outcomes distorts the Syria debate.  Doves emphasize legislative authority in the hope that Congress will reject punitive strikes.  Hawks stress executive power with the goal of acting in the absence of Congressional authorization. Both sides appropriate legal principles to articulate policy arguments.  And in doing so, both sides substitute a contrived debate on war powers for critical deliberations on the merits of war itself.  Now is the time for our legislators to proceed on the merits.  The more handwringing partisans conjure up a constitutional crisis, the more they undermine a normal, and ultimately vital, political process.

 

Christopher Swift is an adjunct professor of national security studies at Georgetown University and a fellow at the University of Virginia Law School’s Center for National Security Law.