The Unhappy Legal History of the War Powers Resolution

In 1973, two years after President Richard Nixon expanded the U.S. war in Vietnam, sending ground troops to Cambodia and provoking massive antiwar demonstrations, the U.S. Congress passed the War Powers Resolution (WPR) over Nixon's veto. Congress sought to roundly reject the idea that the president has primary power over committing the nation to war. Lauded by critics of unilateral presidential war power, the WPR was a political success at the time, but it has been a legal failure. In spite of its enactment, presidential war power has expanded ever since. Presidents value congressional authorization for war as a political message of national unity, but behind the scenes their lawyers have circumscribed the degree to which congressional action is required.¹

The path to conflicts over the war powers was laid when the U.S. Constitution was drafted. In the Constitution's text, war powers are divided. Congress has the constitutional power to declare war, and the president is commander in chief. The division of authority led constitutional scholar Edward Corwin to argue that the Constitution is “an invitation to struggle” over the foreign affairs power. Before World War II, presidents often sent troops to engage in conflicts without a war declaration, but these were more limited deployments until President Harry S. Truman ignored Congress's role at the outset of the Korean War, setting a precedent that tremendous destruction could be authorized by the president alone. Congress authorized the war in Vietnam with the Gulf of Tonkin Resolution (GTR), which granted President Lyndon B. Johnson war power so broad the president compared it to “grandma's nightshirt. It covered everything.” Johnson and his successor Richard M. Nixon relied on that resolution to prosecute a brutal but unsuccessful war in Vietnam, and to expand U.S. military action into Cambodia and Laos.²

With the GTR, Congress handed both presidents broad and amorphous authority for war, but mounting U.S. casualties, news of U.S. atrocities, and growing antiwar protest generated pressure and political momentum to rebalance the war power. The WPR requires that unless there is an attack on the United States or U.S. territory, the president's commander-in-chief power to send U.S. forces into harm's way can be exercised only pursuant to a war declaration or specific statutory authorization. It also requires the president to notify and consult with Congress when force is deployed.³

Soon after its enactment, the question of what, exactly, the WPR prohibited presidents from doing came up as the U.S. was withdrawing from Vietnam. President Gerald Ford wanted to send U.S. troops back to Saigon to help evacuate American civilians and others who were at risk due to their association with the U.S. Was that legal? On April 12, 1975, U.S. Assistant Attorney General Antonin Scalia (who would later become a Justice of the United States Supreme Court) wrote an Office of Legal Counsel (OLC) opinion addressing, in part, whether the WPR posed a barrier. Section 2 (c) of the resolution “clearly prevented” Ford's proposed action, Scalia wrote, but then he opined that this provision merely stated Congress's interpretation of the Constitution. Meanwhile Section 8 provided that “nothing in this joint resolution … is intended to alter the constitutional authority of the Congress or of the President.” The president had Constitutional authority to evacuate American civilians, Scalia wrote. Because the WPR's facial limitation differed from the administration's interpretation of the president's constitutional power, according to Scalia it had no force. His argument rested, in part, on the principle that a statute cannot revise the scope of constitutional power. Legal scholar Oona Hathaway suggests that “there's a good case to be made that this memo marks the beginning of the end of the War Powers Resolution.” In spite of its importance, the memo has only recently been made public through settlement of a Freedom of Information Act lawsuit. Because of executive branch secrecy, Congress was unaware of this opinion and others, and therefore unable to respond with corrective legislation.⁴

Although Executive Branch curtailment of the War Powers Resolution would continue, Congress is not without significant war powers, particularly the appropriations power and the power to authorize a military draft, which enable Congress to co-produce war authority, or to cut back on what a president can accomplish. Congress also has power to investigate and hold hearings. The Senate Foreign Relations Committee's Fulbright Hearings in 1971, for example, exposed brutal U.S. actions in Vietnam, and featured proposals from members of Congress to limit presidential unilateralism. This helped legitimize dissent and led eventually to the WPR itself. These congressional powers matter, but the most effective time to limit presidential war power is before military action has begun and troops are under fire. After that point, at least early in a war, Congress and the country usually rally behind the president and seek to support members of the military in harm's way. OLC opinions upholding the ability of presidents to unilaterally initiate armed conflict undermine Congress's role at the point it can have the greatest impact: before military action has begun.⁵

After the war in Vietnam, the Office of Legal Counsel continued its surgery on the WPR. In a major 1980 review of presidential power to use force without congressional authorization, the OLC argued that constitutional interpretation should be informed by the way presidents have exercised their powers. Substantive limitations on the president's broad power were “a function of historical practice and the political relationship between the President and Congress,” wrote Assistant Attorney General John M. Harmon. “Our history is replete with instances of presidential uses of military force abroad in the absence of prior congressional approval.” Notwithstanding persistent criticism of presidential overreach, the OLC viewed the history of executive power grabs as evidence of the constitutional scope of the commander-in-chief power.⁶

In this important opinion, the OLC relied on the interpretive method referred to as “historical practice” or “the gloss of history.” This approach is based on the idea that interpretation of the separation of powers should be informed by the way the presidents and Congress have historically exercised their powers. The methodology became a key feature of executive branch legal opinions well before it received serious scholarly attention. OLC reliance on the gloss of history meant that the fact that a president had done something became evidence of the next president's power to do the same thing. For example, Truman's action in the Korean War is not treated as an outlier, but as legal precedent for unilateral presidential war power, at least for conflicts not exceeding the scope of that massive and destructive war. Because gloss of history analysis is a form of constitutional interpretation, it trumped acts of Congress like the War Powers Resolution, undermining Congress's ability to pull back on the broadening range of executive power.⁷

If the War Powers Resolution was ineffective in placing limits on presidents’ ability to unilaterally initiate the use of force, what could it do? The WPR has consultation and reporting requirements. Section 3 states:

The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.

Because the consultation is required before armed forces are deployed, and consultation was thought to require more than mere notification, members of Congress were surprised in April 1986 when told by Ronald Reagan's White House that “planes are in the air” to bomb Libya. In response to criticism, State Department Legal Adviser Abraham Sofaer argued that the form of consultation was up to the president.⁸

The Reagan Office of Legal Counsel pushed its interpretation of presidential war and foreign affairs power to the outer limits. In a memo defending President Reagan's secrecy in communications and arms shipment to Iran, Assistant Attorney General Charles J. Cooper argued that the President's foreign affairs power was “presumptively exclusive.” Presidential power was “virtually as broad as the national interest and as indefinable as the exigencies of unpredictable events,” he argued. Because of this, “almost any congressional attempt to curtail his discretion raises questions of constitutional dimension.” Statutes should be interpreted narrowly to protect “the President's constitutional independence.” Statutes infringing on the president's conduct of foreign policy “would be constitutionally void.”⁹

The Reagan Administration's arguments shocked lawyers at the time. Harvard legal icon Archibald Cox was “aghast” at the evisceration of the War Powers Resolution. The country seemed to have veered far from Corwin's idea of the Constitution as an invitation to struggle. Because Office of Legal Counsel opinions serve as precedent within the executive branch and are rarely withdrawn, each administration builds upon previous ones, with Democratic as well as Republican presidents favoring broad power. Resetting this imbalance requires more effort than Congress and the American people have thus far been willing to muster. As a consequence, the evisceration of the War Powers Resolution set the stage for twenty-first-century bipartisan presidential overreach. Instead of setting a boundary on unilateral presidential war power, law became a staging ground for ongoing, unrestrained war.¹⁰