Declaring War

__"The War Powers Resolution: Time to Say Goodbye" by Louis Fisher and David Gray Adler, in Political Science Quarterly (Spring 1998), 475 Riverside Dr., Ste. 1274, New York, N.Y. 10115–1274.__

Twenty-five years ago, as the conflict in Vietnam dragged on, Congress moved to reassert its constitutional authority to declare war with the War Powers Resolution. Enacted on November 7, 1973, over President Richard M. Nixon’s veto, it was ill-conceived from the start, contend Fisher, author of Presidential War Power (1995), and Adler, a political scientist at Idaho State University. Instead of restricting the chief executive’s power, it broadened his legal authority, giving him "unbridled discretion to go to war as he deems necessary against anyone, anytime, anywhere, for at least 90 days."

Senator Thomas Eagleton (D.-Mo.), one of the resolution’s original sponsors, was so appalled by the watered-down version that emerged from a House-Senate conference that he voted against it. The resolution "has been horribly bastardized to the point of being a menace," he warned. The original Senate bill had allowed the president to initiate the use of military force only to repel or retalitate against an armed attack, or to rescue endangered Americans abroad. It required him to end the military action after 30 days if he did not have specific congressional authorization. The emasculated War Powers Resolution merely requires the president "in every possible instance" to consult with Congress before putting U.S. troops into "hostile" situations, and lets the deployment go on for up to 90 days.

Ever since, Fisher and Adler say, presidents have routinely taken unilateral military action, usually treating "consultation" as meaning "notification after the fact." President Ronald Reagan, without seeking congressional authorization beforehand, "introduced U.S. troops to Lebanon, invaded Grenada, carried out air strikes against Libya, and maintained naval operations in the Persian Gulf." President George Bush acted in the same way in invading Panama in 1989, "and only at the last minute did he come to Congress for support in acting offensively against Iraq" in the 1991 Persian Gulf War. President Bill Clinton has repeatedly used, or threatened to use, military force without congressional authority, in Iraq, Somalia, Haiti, and Bosnia, as well as recently in Afghanistan and Sudan.

The Constitution vests in Congress "the sole and exclusive authority to initiate military hostilities," Fisher and Adler maintain, and the War Powers Resolution "unconstitutionally delegates the power to make war to the president." It should be repealed, they assert. They acknowledge that situations are bound to arise, as they have in the past, in which a president considers it necessary to use military force without prior authorization from Congress. "But he cannot be the judge of his own actions," they maintain. Instead, the president should afterward go to Congress, plead necessity, and seek retroactive authorization. If a presidential "usurpation" should be unwarranted, Fisher and Adler say, impeachment would be "a legitimate response."