Ax the War Powers Law

Congress passed the War Powers Resolution in 1973 in a backlash against widely perceived abuses of presidential power in the conduct of the war in Indochina. The act requires a president to consult with Congress before sending the armed forces into battle. Troops committed to hostilities are to be withdrawn within 60 days unless Congress declares war or specifically authorizes their involvement. If a president refuses to act, Congress itself can order the armed forces withdrawn.

Not once in the subsequent 26 years has a president fully complied with the resolution. And not once has Congress chosen to invoke the authority it voted itself, mainly because it did not want the political responsibility of involving itself in a decision that put American lives at risk. This week, at the insistence of Rep. Tom Campbell (R-San Jose) and against the wishes of its leadership, the House is finally being forced to stop ducking and start confronting the implications of the War Powers Resolution.

Campbell wants Congress either to declare war on Yugoslavia or demand that U.S. forces taking part in the NATO operation be withdrawn. There is no reason to think that the House, which has scheduled a floor vote today, or the Senate, which faces a similar vote next month, has any stomach for making a bold choice between war or withdrawal, as a test vote in a House committee Tuesday indicated.

But rejection of Campbell’s ploy would not bury the issue. A floor vote gives him the standing needed to get an eventual Supreme Court hearing on the resolution’s long-disputed constitutionality.

The debate turns on an inherent conflict of powers. Congress alone can declare war. But only the president can send the armed forces into battle. Only five times in our history has Congress declared war--most recently in 1941--though presidents have committed troops to conflict on scores of occasions. But Congress has an enormous additional power. It controls appropriations. If it disapproves of a war it can stop paying for it. This too it has never chosen to do.

Is the War Powers Resolution needed? The relevance of a law that Congress refuses to apply certainly seems dubious. Should the Supreme Court at some point uphold the law’s constitutionality, Congress could one day in some future crisis be forced to vote either for withdrawal or war, with all the military and political consequences that would involve. The War Powers Resolution has few supporters these days. Many in Congress see it as only a continuing legislative embarrassment. The best thing Congress can do is get rid of it.