War Powers Resolution is unconstitutional

• USC gives President authority to introduce armed forces into hostilities without congressional declaration of war.

• In cases of effort to “repel sudden attack,” resolution allows congressional role where such a role is constitutionally proscribed.

• Rostow argues there is nothing constitutionally illegitimate about “undeclared” wars; U.S. fought them frequently in 18^th, 19^th, and 20^th centuries. This resolution would turn clock back to Articles of Confederation and destroy presidency.

The War Powers Resolution is constitutional

• Resolution merely restores constitutional balance that had been upset by long period of congressional inactivity before its passage. Resolution allows Congress to ensure there is no undeclared war.

• If anything, resolution allows President to wage war without declaration in far too many circumstances.

• Mere historical acquiescence by Congress in President’s exercise of war does not by itself prove that Congress lacks authority to exercise of that power when it gathers wisdom/courage to do so.

Practice under the Resolution

• Many commentators agree that resolution has been ineffective in constraining executive discretion.

• Congress reduced resolution’s effectiveness by failing to address two new types of military action arising during 1980s:

• Covert wars. Resolution covers U.S. Armed Forces but not private activities of former CIA operatives. (e.g. Oliver North’s operatives)

• Short-term military strikes. Could be completed well within resolution’s 60-day time limit (e.g. Grenada and Panama)

• Ironically, resolution has also failed to prevent even type of creeping escalation that it was expressly enacted to control: e.g. U.S. troops in Lebanon and American ships patrolling Persian Gulf.

• Could Congress have crafted a more effective resolution?

• Yes, as long as Congress still has the will to be held accountable. (Ely)

• No. No modification of the resolution will in itself ensure that collective judgment of both Congress and President will apply to introduction of U.S. Armed Forces into hostilities. No statute is even required for members of Congress to have the insight and courage to stand up to Presidential exercise of war. (Glennon)

The Constitution without courts – War Powers and Boland

• Both War Powers Resolution and Boland Amendments represented efforts by Congress to utilize self-help in enforcing constitutional boundaries. Does experience here suggest that judicial review is essential to constitutional government in this area?

• Actually, note that SCt has regularly tipped the balance of foreign policy making power in favor of the president, both on the merits or on justiciability grounds.

• Following conclusions might be drawn from SCt’s record here:

• Judicial review is not the solution to the inadequate enforcement of constitutional limitations on executive power. Rather, constitutional requirements are best enforced through the give-and-take of political process.

• Constitutional limitations have been inadequately enforced precisely because SCt has mistakenly remitted these questions to political process.

• Constitutional limitations have not been inadequately enforced. Framers deliberately created strong executive. Moreover, USC is flexible enough to accommodate changed circumstances that have caused our political system to tilt toward a powerful president.