The Constitutionally Dubious War Powers Act

Clearly there's a large ambiguity in the Constitutional gap between the two separate war-related powers of Congress and the Executive. The WPA can be seen as an attempt to resolve it but can't if it's unconstitutional.

Andrew McCarthy, like pretty much every President since Nixon’s veto was overridden, argues that the constitutionality of the War Powers Resolution (50 U.S.C. 1541 et seq., commonly called the War Powers Act) is deeply suspect:

What makes the WPA constitutionally problematic, though, is mostly its legislative veto provision, which purports to enable Congress to direct the president to withdraw forces by a joint resolution. (See this 2004 CRS analysis, here.) Joint resolutions are not binding law because, under the Constitution, law can only be enacted if the president signs a bill passed by both houses of Congress, or if Congress overrides a presidential veto of that bill by the required super-majority. (As Rich points out, the veto-override is how the WPA was enacted in the first place.) Putting aside the knottier question whether Congress has the authority to order a president to withdraw forces (i.e., could Congress constitutionally direct a president to withdraw forces by overriding the presidential veto of a bill directing him to do so?), Congress certainly cannot direct a president to do anything by a mere resolution.

I’d answer the parenthetical question in the affirmative. But that’s all but irrelevant to the thornier issue of the WPA’s general Constitutional infirmity. The Founders envisioned each of the co-equal branches interpreting the Constitution on their own. The notion that time and the political process would tend to lead to optimal solutions suited their overall scheme of providing a general document setting forth the powers and limits on government rather than an all-encompassing one that dealt with every scenario imaginable.

Marbury v. Madison merely provided the missing arbiter of last resort for most such inter-branch tensions. It didn’t eradicate it. And, as Mr. McCarthy notes, some questions are inherently non-justiciable (though I am not as certain as he is that this is one of them).

Position is policy. Presidents qua Commanders-In-Chief naturally have a broader view of their power and authority (a nice distinction made by Mr. McCarthy) than Congress, in which the power to declare war and pay for its instrumentalities is vested. And clearly there’s a large ambiguity in the Constitutional gap between the two separate functions. The WPA can be seen as an attempt to resolve it. But it cannot do so if it is itself unconstitutional.

And it is. As Schoolhouse Rock taught us all, bills only become laws when they get signed by the President (or a veto overridden). That the Founders imagined war as something that usually happens slowly and with plenty of time to gather and debate speaks both to their agrarian mindset and their entirely laudable belief that that’s the only way wars should happen. One could argue that the modern world of instantaneous global communication and fast-rising threats render that faith as outdated as its socio-political context. But even if that were true, the proper means of updating the Constitution is the one set forth within it, not by passing laws that, on their face, abrogate proper Constitutional process.

The question also arose when Clinton was ignoring the WPA in Kosovo on the grounds that Congress had funded, and therefore implicitly approved, it. But since the WPA expressly states that appropriations for military action do not constitute such WPA approval, Clinton’s argument was simply a frivolous cover for doing as he wished.

Obama’s assertion that the handing off of leadership in Libya to NATO obviates the need for WPA approval fares even worse. That US involvement is allegedly “limited” does not nullify the applicability of the WPA. American military forces are still engaged; ergo it falls within the ambit of the statute. Likewise Reagan’s attack on Libya and Bush I’s Somalia incursion (contrast to Bush II who, for all that he was so often accused of “rushing to war,” actually spent months making his case, and securing Congressional authorization, for invading Iraq).

So the brazenness with which the President has ignored the statute has forced the question upon us again. Contrary to Mr. McCarthy (and others), I don’t think one can say that the WPA has been rendered a dead letter by Obama’s “kinetic military action” in Libya. It is, after all, still on the books. Had he chosen to forthrightly assert the Executive’s inherent authority rather than resorting to nonsensical semantics and sophistry about the chain of command, that argument might be stronger. But he has made it very difficult indeed to continue to ignore the WPA’s Constitutional handicaps.

The solution to the real problem here, as is so often the case, is to restore the Founders’ vision: Desist from trying to be the world’s policeman and ressurect our general pre-WWII attitude that we only go to war deliberately. That can only be done by following the process the Founders envisioned. Slapping a Band-Aid on an inconvenient ambiguity does more violence to the Constitution than it cures.

FILED UNDER: Congress, Government, Law and the Courts, Military Affairs,
Dodd Harris
About Dodd Harris
Dodd, who used to run a blog named ipse dixit, is an attorney, a veteran of the United States Navy, and a fairly good poker player. He contributed over 650 pieces to OTB between May 2007 and September 2013. Follow him on Twitter @Amuk3.

Comments

  1. sam says:

    Hmmm.

    What makes the WPA constitutionally problematic, though, is mostly its legislative veto provision, which purports to enable Congress to direct the president to withdraw forces by a joint resolution…Joint resolutions are not binding law because, under the Constitution, law can only be enacted if the president signs a bill passed by both houses of Congress, or if Congress overrides a presidential veto of that bill by the required super-majority.

    I’m not so sure that’s unconstitutional as presented, since all the law seems to really do is –via nonbinding joint resolution — license Congress to go, Tsk, Tsk, to the president and then wag its collective finger at him or her. How is that unconstitutional?

  2. Dodd says:

    Because, as McCarthy said, the WPA purports to grant Congress the power to pass a joint resolution which is binding on the President. (IOW, to do an end run around the need for a Presidential signature to create law.)

    Congress always has the authority to tsk, tsk anything it wants. In this case, though, Congress thinks its finger-wagging actually has the force of law.

  3. sam says:

    Well, I’ll have to think about this some more. But I went and looked it up. McCarthy is wrong. The legislation concerns a concurrent resolution (which does not require a presidential signature and does not have the force of law and is not binding), not a joint resolution (which does and is…):

    There is also an unresolved legal question, discussed by Justice White in INS v. Chadha of whether a “key provision of the War Powers Resolution”, namely 50 U.S.C. 1544(c), constitutes an improper legislative veto. (See Chadha, 462 U.S. 919, 971.) That section 1544(c) states “such forces shall be removed by the President if the Congress so directs by concurrent resolution”. Justice White argues in his dissent in Chadha that, under the Chadha ruling, 1544(c) would be a violation of the Presentment Clause. The majority in Chadha does not resolve the issue. Justice White does not address or evaluate in his dissent whether that section would fall within the inherent Congressional authority under Article I Section 8 to “make Rules for the Government and Regulation of the land and naval Forces.”[Source]

    Not sure if that makes any difference to the argument, but.

  4. PD Shaw says:

    sam, the point is that the President is legally required to do something (disengage from the armed conflict) at the sole discretion of Congress, without opportunity for Presidential veto. The War Powers Act gives the resolution the force of law, even if conurrent resolutions traditionally don’t have the force of law.

  5. PD Shaw says:

    Stated another way, the concurrent resolution isn’t unconstitutional; Congress can resolve all kinds of unimportant stuff. It’s the War Powers Act attempting by statute to supplant the Constitutional scheme that would probably be found illegal, much as reserving a legislative veto was found unconstitutional.

  6. sam says:

    Well, try this and see if you find it congenial. When I think about the WR, it’s like (to borrow from another place), looking inside a mechanism and seeing a wheel that’s going around — then realizing the wheel isn’t doing any work. Does that make sense?

  7. Liberty60 says:

    Without attempting to enter the thicket of Constitutional law, what is deeply disturbing to me as a citizen is the eagerness to abandon the basic logic contained within the Constitution-

    That is, that war is a profound and momentous thing, only to be entered into with the full support and consent of the People’s representatives.

  8. PD Shaw says:

    @sam, I get what you’re saying since the law is drafted in a form that gives that appearance. But if the President is required to do something purely at the behest of Congress, then it’s a law and all laws under our system require the President to veto it. You can call it a resolution, you can call it Humpty Dumpty, but if the President is obligated to something, the courts will call it a law.

  9. PD Shaw says:

    should read “require the President an opportunity to veto it.”

  10. PD Shaw says:

    Liberty60, the odd thing is that the War Powers Act has essentially turned things backwards. The President has been given a virtual green light to institute military action and Congress must act affirmatively to stop him. Easy in, hard to get out. A number of people in the Constitutional Convention thought it should be the opposite.

  11. Joe R. says:

    Because, as McCarthy said, the WPA purports to grant Congress the power to pass a joint resolution which is binding on the President. (IOW, to do an end run around the need for a Presidential signature to create law.)

    Congress always has the authority to tsk, tsk anything it wants. In this case, though, Congress thinks its finger-wagging actually has the force of law.

    I’m no legal expert, but wouldn’t it be true that the only person with legal standing to fight the law in court be the President? Which makes things fairly interesting.

  12. Wayne says:

    If the WPA is unconstitutional, then the President would be in violation the constitution if he took military action without the approval of congress.

    Congress has approved other things like long term obligations programs that would look like a violation of the Constitution also.