Political Science Quarterly
Issue 113, No. 1 (Spring 1998)

The War Powers Resolution: Time to Say Goodbye

By Louis Fisher and David Gray Adler

With the 1973 adoption of the War Powers Resolution (WPR), Congress made its most significant entry into specific legislation on national security. While the WPR intended to clarify and codify war-making powers, promoting collective action and judgment on the part of the executive and legislative brances, its practical effect has been to grant the President unbridled authority to wage war. In "The War Powers Resolution: Time to Say Goodbye," appearing in the Spring 1998 edition of Political Science Quarterly, Louis Fisher and David Gray Adler argue that the WPR should be repealed, restoring Congress's constitutional power to declare war and authorize offensive operations. Fisher and Adler's article is especially timely for the spring of 1998, as the commitment of US troops to the Persian Gulf for enforcement of the UN's agreement with Iraq has brought war powers back to the attention of policy makers.

Louis Fisher is a senior researcher of the Congressional Research Service in Washington, DC. David Gray Adler is professor of political science at Idaho State University. Political Science Quarterly , published in New York by the Academy of Political Science since 1886, is the oldest journal of public and international affairs in the United States.

 

Experience under the WPR

Congress has found itself marginalized by presidential war power in a way that circumvents the Constitution and damages the war powers codified by the Framers. Under the WPR, Presidents are able to use force until Congress constrains such force, and there is no probibition against unilateral Presidential action. In practice, the Ford and Carter administrations seldom clashed with Congress on war powers. President Reagan did not ask Congress for authority to commence operations in Lebanon, Libya, Grenada, or the Persian Gulf, but generally respected the sixty-day limit on operations without reporting to Congress. Likewise, President Bush invaded Panama with no sanction from Congress, and sought Congressional support for Operation Desert Storm only at the last minute. President Clinton, however, has repeatedly made long-term commitments without Congressional approval in Haiti, Bosnia, and Iraq.

 

The Framers' Intent and the Passage of the Resolution

While the Constitution states explicitly that Congress has the power to declare war, under the WPR the President can wage war unilaterally for up to 90 days, without first seeking Congressional authority. The Framers' establishment of Congress as the holder of war powers, however, is unambigious. The placing of the power to wage war in the legislature is a dramatic break from the governments which existed in Europe at the time of the Framers. The Framers unquestionably understood the ability to "declare" war as being synonymous with commencing war. Under the Constitution, only Congress enjoys the power to commence hostilities deliberately. The President has never been vested with the general power to deploy troops or to take the country into full-scale war. As Commander-in-Chief, the President carries no warmaking power.  

In drafting the WPR, Congress began with incompatible principles. The Senate version specified that a President could commit troops without authorization only to repel a direct armed attack on the United States, to prevent attack on US forces overseas, or to rescue endangered American citizens overseas. The House bill, however, only relied upon procedural safeguards and allowed the President to act militarily without congressional authorization. The compromise version of the WPR gives the President the ability to use military force in any part of the world for ninety days without Congressional approval. Its requirement for the President to consult with Congress before using force rests on a definition of "consultation" that is ambiguous enough to constitute a delegation of warmaking power to the President. The final bill was a poor compromise that eroded Congress's constitutional power. Most disturbingly, the passage of the WPR was heavily driven by the volatile politics of Nixon's second term and not by careful constitutional considerations.

 

The WPR and Judicial Review

The Federal judiciary has declined to review the constitutionality of the WPR, refusing to become involved in political questions and asserting that Congress must confront the President by legislation rather than adjudication. Were Congress to challenge a President vigorously on a specific issue of war powers, the legislation would be ripe for judicial review. The Supreme Court has dealt with the struggle between congressional and presidential war powers since the dawn of the Republic. As early as the first years of the nineteenth century, it rendered decisions that confirmed the power of Congress to initiate hostilities.

 

Prescriptions and Conclusions

In 1995, Congress narrowly rejected a partial repeal of the WPR, which would have retained merely the provisions on consultation and Presidential reporting. A Use of Force Act, considered as a replacement for the WPR, would have authorized the president to use force whenever approved by the UN Security Council, even when Congress had not authorized such action. Consultation, Fisher and Adler assert, cannot replace the constitutional authority of Congress to initiate war. Since the War Powers Resolution is a constitutionally flawed act which has produced confusion and distraction, the authors recommend that it be fully repealed. Congress would be able to take legislative remedies to stop presidential warmaking by withholding funds, prohibiting specific actions, and taking other measures. Impeachment, the authors suggest, would remain as a final response to presidential abuse of power.

"Seldom has a statute misfired to such an extent on a basic purpose. The [War Powers R]esolution does violence to the intent of the Framers and has not in any sense insured the collective judgment of Congress and the president in the use of military force."

-- Louis Fisher and David Gray Adler, "The War Powers Resolution: Time to Say Goodbye"