War Powers: Fixing a Broken Law

The War Powers Resolution has been law for 14 years, yet no President has ever chosen to honor its mandates and no Congress has ever demanded that its provisions be enforced. Successive Presidents, beginning with Richard Nixon, over whose veto the act became law, through Gerald Ford, Jimmy Carter and Ronald Reagan have all seen the act as unconstitutionally infringing on executive authority. Successive Congresses have insisted that the act is constitutionally proper. But Congress, confronted first with Lebanon in 1982 and then the Persian Gulf in 1987, has chosen not to press the point. In consequence, even the strongest of the resolution’s supporters today acknowledge that it doesn’t work.

An emerging bipartisan consensus is forming behind the idea of either repealing the Vietnam-era law or, more likely, significantly revising it. U.S. naval operations in the gulf have brought the matter to a head. The resolution says that the President must inform Congress speedily when American forces face “imminent hostilities,” and then it requires the withdrawal of those forces within 90 days unless Congress authorizes their continued presence. The gulf commitment has seen U.S. forces exposed not only to imminent but also to actual hostilities. Congress has complained, but has not insisted that the law be complied with. To some in Congress, this smacks of an institutional failure of responsibility.

The War Powers Resolution was supposed to prevent the United States from becoming involved in a war without explicit congressional approval. That remains a worthy purpose. But the argument that has gone back and forth between the White House and Congress over a half-generation focuses not on aims but on authority. Congress insists that its constitutional powers to declare war and raise and support armies give it the right to be in at the beginning on warmaking decisions. Presidents respond that Congress is seeking to curb their constitutional powers in the conduct of foreign policy and control of the armed forces. It’s an old argument, predating the War Powers Resolution, and it’s not likely to be resolved soon.

The issue, though, won’t go away. A nation that has undertaken global commitments inevitably faces global risks and potential armed conflict. Congress attempted, in 1973, to make sure that it would have a say in controlling the extent of any conflict. That goal hasn’t been abandoned, but Congress now seems determined to try to go at it in a different way. This time, maybe, it can write a more effective law.