WAR POWERS (Update 1)

The phrase "war powers" does not appear in the Constitution. By the mid-1980s a complex of specific grants in the document nonetheless provided the federal government broad authority to protect national security through military action abroad and domestic mobilization. Court decisions and practice had established that when Congress and the President acted in concert, hardly any barriers existed, except on those rare occasions involving violations of the bill of rights. Executive action lacking congressional endorsement had proved more debatable, although less litigated. Courts had not effectively challenged presidential ventures abroad, nor had Congress itself institutionally challenged the President, save when the vietnam war was nearly over.

In the late 1980s little changed. Because of the absence of foreign conflicts sufficient to require domestic mobilization and controls, existing case law pertaining to the home front in wartime remained undisturbed, encapsulated in an earlier era. Indeed, this situation seemed likely to continue, because by the end of the decade shifts within the former "Communist bloc" significantly lessened the chance that the nation would again see massive domestic build-ups like those of world war i and world war ii. (Reserve call-ups during the American confrontation and war with Iraq in 1990–1991 proved, however, that lesser mobilizations could still occur.)

Even the japanese american cases sat untouched. To be sure, Congress offered its tardy amends for the World War II relocation program, providing modest compensation for surviving internees; and with an assist from academic researchers who uncovered evidentiary deficiencies and procedural irregularities in the wartime prosecutions, the original federal trial courts used the old writ of error coram nobis to vacate the convictions of Gordon Hirabayashi, Fred Korematsu, and Minoru Yasui. But the major Supreme Court decisions from 1943 and 1944 now served amazingly as authority for viewing race as a suspect classification.

Abroad, presidential war making continued. Following his popular intervention in Grenada in 1983 and his more controversial use of marines in Lebanon during the same period (which Congress finally authorized), President ronald reagan sent naval forces to the Persian Gulf in 1987–1988 to protect oil shipments during the Iran-Iraq War. In December 1989 his successor, george bush, committed troops to combat in Panama, after failing to dislodge Panamanian dictator Manuel Noriega by other means. Then, beginning in August 1990, Iraq's invasion and occupation of Kuwait triggered an escalating response by Bush that recalled memories of both the korean war and the vietnam war. Both Presidents skirted the reporting requirements of the 1973 War Powers Resolution. By late 1990 some twenty-one instances of presidential war making had arguably fallen under the coverage of the law since its passage, but in only one (during gerald r. ford's tenure) had a President explicitly reported to Congress that he had sent forces into hostilities or situations of imminent hostility.

The Panamanian episode typified the practice. Bush informed Congress, but stated that his report was "consistent with" the War Powers Resolution, not pursuant to it. In particular, he carefully avoided mention of section 4(a)(1), the provision defining the commitment of forces that triggers the law's requirement for troop withdrawal after sixty days unless Congress authorizes continuation. The military operations, Bush said, "were ordered pursuant to my constitutional authority with respect to the conduct of foreign relations and as Commander in Chief."

Such actions did not go entirely unchallenged. After Reagan ordered naval forces to the Persian Gulf, just as in 1982 after he sent military advisers into El Salvador, individual members of Congress asked the federal District Court for the District of Columbia to enjoin the President to file the report required to start the War Powers Resolution's sixty-day "clock." In Lowry v. Reagan (D.D.C. 1987) the court declined, invoking the D.C. Circuit's doctrine of "remedial discretion" by finding that the members' dispute was not with the President, but with their legislative colleagues who refused to pass legislation starting the clock. The court added that the political questions doctrine also barred the suit in its present form, because a court injunction could endanger diplomatic initiatives through multiple pronouncements on a sensitive matter.

The demonstrated ineffectiveness of the War Powers Resolution in turn led to proposals to amend it. This step became more urgent because most authorities viewed immigration and naturalization service v. chadha (1983) as invalidating the law's provision for use of a concurrent resolution to terminate a military action prior to the sixty-day deadline. Suggested changes included tightening key definitions within the law, substituting joint resolutions for concurrent resolutions as the disallowance mechanism, specifying which members of Congress the President was to consult under the act's consultation requirement, eliminating the sixty-day limit on the use of force without congressional approval, and granting individual members of Congress standing in court challenges under the War Powers Resolution. By mid-1991, none of the proposals had passed.

These disputes, along with covert arms-for-hostages deals in the Middle East and support for the Contra rebels in Nicaragua, produced renewed debate over the constitutional locus of the external war-making power. Defenders of presidential initiatives predictably trotted out arguments for inherent executive power that dated back to alexander hamilton's "Pacificus" essays in 1793 and had received apparent endorsement in united states v. curtiss-wright export corp. (1936). Critics again quickly pointed out the egregious historical errors in such defenses. Talk of an "imperial Congress" also missed the point, they argued, because the constitutional framework contemplated congressional control of foreign commitments and policy decisions relating to military force. In December 1990, while the Iraqi crisis heightened, U.S. District Judge Harold H. Greene agreed in Dellums v. Bush (D.D.C. 1990) that the Constitution gives Congress authority over offensive warfare. At the same time, relying on the doctrine of ripeness, he declined to enjoin President Bush from acting without congressional authorization. Although denying he needed it before ordering an attack on Iraq, Bush requested congressional approval anyway in January 1991, and received it with votes of 52–47 in the Senate and 250–183 in the House of Representatives.

Overall, neither side clearly prevailed in the recurring constitutional disputes over warmaking. The subject remained largely within the "zone of twilight" identified during the Korean War by Justice robert h. jackson in youngstown sheet & tube co. v. sawyer (1952).

Charles A. Lofgren
(1992)

Bibliography

Ely, John Hart 1988 Suppose Congress Wanted a War Powers Act That Worked. Columbia Law Review 88:1379–1431.

Henkin, Louis et al. 1989 The Constitution in Its Third Century: Foreign Affairs. American Journal of International Law 83:713–900. Symposium Issue.

Wormuth, Francis D. and Firmage, Edwin B. 1989 To Chain the Dog of War: The War Power of Congress in History and Law, 2nd ed. Urbana: University of Illinois Press.

War Powers (Update 1)