SOMEWHAT LOST in turmoil and tragedy of the past few months has been a slightly morbid, yet potentially momentous "sideshow": the double invocation by Congress of the 1973 War Powers Resolution. This strange blend of binding and non-binding resolutions remains one of the most confusing and misunderstood laws in American Constitutional history. Its primary departure from post-World War II custom is a 60 day time limit on the independent prerogative of Presidential military action.
Two very curious facts remain concerning this legislation--the 60 day limit has never expired in the past, and if it does now, there is no guarantee that the President will obey the law. Indeed, there are serious doubts about whether he should obey. Congress has extended this game of "chicken" over Lebanon to 18 months through amendment to the Resolution; hardly an affirmation of confidence in its legality. This constitutional ambiguity lies at the heart of the debate over the War Powers Resolution. It urgently needs reassessment and adjustment in light of recent history.
In 1973 America was faced with perhaps the gravest Constitutional crisis of the 20th century. A series of crimes had been committed by the Nixon Administration, including theft, illegal surveillance, and obstruction of justice. Nixon's own intransigence and "imperial" style of executive leadership did not help his public standing either. Also, the bitter memory of Vietnam was still fresh in the national conscience--Nixon's part in it aroused mixed, but generally hostile, feelings. In general, a mood of antagonism to the Presidency reached an unsurpassed high in 1973, and a major result of this was the War Powers Resolution.
As the only Congressional action passed despite Nixon's veto in 1973 (eight others failed), the Resolution possesses a dubious honor at best. On the one hand, it was an honest attempt by Congress to restrain a President who had almost certainly overstepped his Constitutional bounds. But on the other hand this legislation must be seen as a manifestation of the time in which it was written. As such it cannot be viewed as an objective piece of Constitutional adjustment. While the intentions behind it--achievement of a consensus of use of American force, guarantee of debate on potentially dangerous actions, fulfillment of the Founding Fathers' desire for Congress to declare war--may be praiseworthy, the Resolution does not adequately address the critical question of how to achieve these ends.
What does it say? First, it restricts the President's use of force to only three situations: 1) upon declaration of war by Congress: 2) in response to specific statutory authorization (i.e. fulfillment of treaty obligations): and 3) in response to a national emergency caused by attack on US territory or armed forces. Second, when the President is contemplating action (presumably in response to one of the above eventualities), he must "consult" with Congress beforehand, if time permits. Third, after the use of force has begun, the President must inform Congress within 48 hours. Finally, 60 days may pass, during which time the President has control over the forces, but at the conclusion of which ther forces must be withdrawn unless Congress has specifically authorized action.
The problems with the resolution are immediately apparent, and curiously enough, they do nor all lie on the adds of limitation. Many Congressmen in '73 felt the Resolution gave to much leeway to the President--that in fact it confirmed a loss of Congressional military and war power that had been only tacit until then. These objections can safely be dismissed, however, since the compromise struck in '73 rested on a fundamental tenet still in operation today--the nature of modern conflict precludes full use of Constitutional provisions concerning war.
THE RESOLUTION'S RECORD during its 10 year history has been mixed. President Ford's actions during the Mayaguez piracy/kidnapping incident certainly involved a threat to US citizens, but not necessarily territory or service personnel. The same can be said about President Carter's abortive attempt to rescue the Iranian hostages, although he has been the only President to date who has complied with the Resolution as a whole. The case for Reagan' actions is more tenuous still. Lebanon had almost no Americans in residence last year, and moreover we have no formal defense agreement with the Lebanese Government. The question of imminent danger to the American students in Grenada remains at the core of the dispute over that action.
So we are left with some basic questions concerning the division of powers in our government. What constitutes a true threat to the United States? Is it defined too narrowly by the Resolution? Is the time limit justified, and does it benefit the U.S.? Who should have more power over our use of force. Congress or the President? This is perhaps the most important question concerning the War Powers Resolution. A good example of this controversial balance occurred with the Tonkin Gulf Resolution. In 1965, President Johnson was given essentially unlimited power to fight Vietnam by an overwhelming majority of Congress. The only two Senators who voted against it were defeated for re-election. And yet eight years later, a diametrically opposed measure was passed over Nixon's veto.
In general, the facts of world conflict since 1945 have been completely twisted out of shape as far as the Constitution is concerned. The Founding Fathers could not have foreseen nuclear weapons, nor very likely the global nature of American military commitment. The War Powers Resolution does not adequately address this question: indeed, it restricts the President too much. It has been ignored and or maligned by three of the four Presidents who have had to deal with it. The Supreme Court's overturning of the "legislative veto" earlier this year indicates it might also strike down the Resolution. Thus the balance in our government concerning war powers is tilted against the Congress at present. As a result, they should take prompt action on their own initiative to revise the Resolution, and possibly even completely restructure and change it, using cooler heads than in 1973. Paul W. Green