Andrew Kerester
Prof. Hayes
Pols 3602
Research Essay
4/24/2015
The War Powers Resolution of 1973: How Congressional Intent...
increasing the war-making power of their office, signifies a decisive moment as Congress begins
to limit the President’s w...
the conflicting constitutionally based claims made by both Congress and the President in order to
justify their actions in...
susceptible to political advances by an empowered Congress has been established, the discussion
can move on to scrutinizin...
initiates a 60 day time limit, at the end of which US forces must withdraw from conflict unless
Congress authorizes a time...
resulted in casualties and direct military confrontation (Carter, 1984). Congress responded rather
meekly to this obvious ...
authority of the War Powers Resolution (Zablocki, 1984). Ford’s relatively informal report did
not trigger the 60 day time...
Powers Resolution: Congress has established a statute that on paper strengthens its control over
war-making but the conseq...
Works Cited
1. Grimmett, Richard. "The War Powers Resolution: After 30 Years." Federation of
American Scientists. Congress...
5. Zablocki, Clement. "War Powers Resolution: It's Past Record and Future Promise."
Digital Commons @ Loyola Marymount Uni...
of 10

Pols 3602 Final Paper on War Powers Resolution of 1973

Published on: Mar 4, 2016
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Transcripts - Pols 3602 Final Paper on War Powers Resolution of 1973

  • 1. Andrew Kerester Prof. Hayes Pols 3602 Research Essay 4/24/2015 The War Powers Resolution of 1973: How Congressional Intentions Morphed Into Executive Realities Let us consider the American political situation in 1973: the Nixon administration is reeling in the wake of the Watergate scandal and rapidly losing credibility, presenting an opportunity for Congress to assert its political power. One area that Congress sought to increase its control over was the realm of national defense, specifically the right to declare and end wars. The United States Constitution grants Congress the exclusive right to declare or end wars and military engagements on behalf of the United States but one would find it difficult to infer this solely by examining the past record of America’s military conflicts. Historically, Presidents have unilaterally made the decision to engage in military conflicts and Congress has somewhat reluctantly accepted this usurpation of its power without much tangible resistance (Vance, 1984). For instance, Jefferson and the Barbary Pirates, Polk and Mexico, McKinley and the Boxer Rebellion, Teddy Roosevelt and Panama, and Taft, Wilson and Coolidge in Nicaragua, Haiti and the Dominican Republic are all cases where presidents took it upon themselves to engage in military conflict without honoring Congress’ constitutionally granted right to begin or end military conflicts (Vance, 1984). The Vietnam War, after several centuries of presidents steadily
  • 2. increasing the war-making power of their office, signifies a decisive moment as Congress begins to limit the President’s war-making power in reaction to domestic disputes over the war’s goals, its costs and the failure to achieve the stated goals of the war (Vance, 1984). In the final years of the Vietnam War and following the Watergate scandal, Congress passes the War Powers Resolution of 1973, a joint resolution imposing constraints on presidential war-making. In effect, the historical tendency for Presidents to trample over Congress’ constitutional right to make declarations of war contributes to legislators’ motivation for passing the War Powers Resolution of 1973 in an effort to reassert their constitutionally backed authority to declare war and limit unilateral action by the President. The focal argument of this paper asserts that, contrary to Congress’ intentions, the track record of American global military conflicts post- 1973 illustrates the resolution’s failure to assert congressional authority and instead provided an ambiguous framework that the President could interpret as he saw fit in order to pursue his foreign policy objectives and retain or bolster executive authority to unilaterally engage in military conflicts. To begin this argument, I will detail the events leading to its eventual passing in Congress, the provisions of the War Powers Resolution and Congress’ intentions behind the act so that we may obtain a better understanding of how the resolution has been distorted and abused. After establishing this base knowledge necessary to understand the rest of the argument, I will provide specific examples in order to demonstrate how the decisions and actions taken by presidents and Congress following the passage of the War Powers Resolution of 1973 morphed the meaning and future usage of the act, creating a gap between the intention on paper at its conception by Congress and the reality of its implementation by the executive branch. Finally, I will conclude by recapping the core elements of my argument as well as shedding some light on
  • 3. the conflicting constitutionally based claims made by both Congress and the President in order to justify their actions in relation to the War Powers Resolution of 1973. Let us begin this discussion by exploring the events that led to the passage of the War Powers Resolution of 1973. During the midst of the Vietnam War in 1969, the Senate passed a resolution stating that US forces could only be committed to combat following “affirmative action taken by the executive and legislative branches…by means of a treaty, statute, or concurrent resolution of both Houses of Congress specifically providing for such commitment.” (Vance, 1984) Subsequently in 1970 and 1971, the House approved bills necessitating the President to report to Congress only after initiating a military conflict, but these bills were not ambitious enough and did not pass in the Senate (Vance, 1984). Following the rejection of these bills, the Senate crafted a bill in 1971 known as the “War Powers Act” which was the first effort to clarify the specific war powers of the President, but this bill failed to pass the conference stage (Vance, 1984). Another attempt to limit the war powers of the President was made in 1973 as both houses of Congress passed measures that moved on to the conference committee stage in July, 1973 (Vance, 1984). The resulting conference bill became known as the “War Powers Resolution” and was reported out of the conference stage on Oct. 4 1973 but met resistance from the executive branch as incumbent President Nixon vetoed the joint resolution, however the bill received support from both political parties in Congress and was passed over Nixon’s veto after meeting the two-thirds majority threshold required to overturn the veto (Vance, 1984). In effect, the “resolution was forced on a weakened President Nixon by a Congress brimming with confidence in the wake of the Watergate scandals.” (Carter, 1984) Now that the development of the War Powers Resolution has been described and the fact that it passed during a time when the executive branch was in a vulnerable state and more
  • 4. susceptible to political advances by an empowered Congress has been established, the discussion can move on to scrutinizing Congress’ intentions when crafting this legislation. Congress devised the War Powers Resolution during a time when presidential approval was low, due to both the Watergate scandal and the fiasco that was the Vietnam War, leading them to envision the possibility of curtailing presidential ambition and reestablishing congressional supremacy over the act of declaring war and initiating military conflicts. As such, when crafting the resolution Congress determined that its main purpose should be to establish processes to ensure that both branches share in decisions that might result in military engagement (Grimmett, 2004). Congress did not want to neutralize the President’s ability to wage war as Commander-in-Chief, but simply sought to restrict the President’s authority to engage armed forces in hostilities abroad without congressional authorization, while still providing the President enough authority to allow him to respond to attacks against America or other emergencies (Grimmett, 2004). These intentions lived in the minds of the Congressmen who drafted the War Powers Resolution and influenced its formation and the provisions that arose from it. The War Powers Resolution contains several different major provisions which attempt to limit the powers of the President and assert congressional authority. The first of these states the general policy of the resolution, which is to “ensure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities,” (Lib of Con, 2014) and to make certain that the President only utilizes his Commander-in-Chief powers with authorization from Congress (Lib of Con, 2014). The next provision necessitates that the President must defer to Congress before committing US soldiers to hostilities or situations where hostilities are likely to occur (Lib of Con, 2014). The War Powers Resolution also requires the President to file a formal report with Congress which
  • 5. initiates a 60 day time limit, at the end of which US forces must withdraw from conflict unless Congress authorizes a time extension, with an extra 30 days on top of the initial 60 days to allow for an orderly withdrawal of US forces from hostilities (Lib of Con, 2014). Congress also included a provision requiring the President to withdraw US armed forces already involved in military conflict at any time if Congress issues a concurrent resolution instructing the President to do so (Lib of Con, 2014). These provisions constitute the vital core of the War Powers Resolution. Having made the provisions of the legislation known, the discussion can now advance to evidencing how Congress’ intentions when writing the War Powers Resolution have been morphed and distorted by the executive to suit its own purposes. As the following cases will demonstrate, intentions do not translate into realities unless those intentions are ardently reflected in the actions of the intenders. The first example I will present is President Reagan’s deployment of American armed forces on a peacekeeping mission to Lebanon. In 1982, Reagan sent American armed forces into Lebanon to participate in an international peacekeeping mission to resolve a civil war in the nation without the authorization of Congress, prompting the legislative branch to request that the president comply with the requirements of the War Powers Resolution by officially informing Congress that troops were engaged in military conflict (Carter, 1984). However, it appears that Congress did not make this request forcefully enough. The executive branch responded by denying that the provisions of the resolution applied to the Lebanon conflict because the hostilities were not targeted against American forces, who were officially there on peacekeeping duty (Carter, 1984). The White House’s argument that American soldiers were not directly engaged in hostilities lays on a weak foundation, especially considering that it was not too long before continued attacks on American forces in Beirut
  • 6. resulted in casualties and direct military confrontation (Carter, 1984). Congress responded rather meekly to this obvious breach of the War Powers Resolution, despite their strongly worded intentions in the document that stipulated the President’s submission to congressional authority on matters of sending US armed forces into hostile engagements. Their response consisted of negotiating a compromise with the President, whereby Reagan, on October 12, 1983, signed a congressional resolution invoking the War Powers Resolution which approved continued deployment of US forces in Lebanon for an additional 18 months (Rubner, 1986). Reagan made a strong statement regarding his signing of this compromise, making it clear that his signature was “not to be viewed as any acknowledgment that the President’s constitutional authority can be impermissibly infringed by statute.” (Rubner, 1986) This compromise and Reagan’s ensuing declaration showcase how the President used force of will to twist and bend the intentions behind the War Powers Resolution to suit his interests, successfully usurping the authority to deploy troops while also receiving submission from Congress implicit in their authorization of continued military force. Their submission is implicit due to the fact that pursuant to the War Powers Resolution, Congress possessed the authority to force Reagan to withdraw troops but instead they lacked the political willpower to do anything more than draft a compromise giving Reagan authorization to continue doing what he was going to do anyways, effectively legalizing what had been a technically illegal act by Reagan. Another example of executive actions manipulating the War Powers Resolution is the Danang Sealift when President Ford used United States military resources to evacuate American and Vietnamese refugees during the fall of South Vietnam in 1975. Instead of deferring to Congress on the matter, Ford’s consultation with Congress consisted of reporting his actions to a select few members of Congress after having already undertaken those actions, citing his authority as Commander-in-Chief rather than the
  • 7. authority of the War Powers Resolution (Zablocki, 1984). Ford’s relatively informal report did not trigger the 60 day time limit to withdraw troops, thereby circumventing it and setting a precedent for future Presidents to ignore or manipulate the law (Zablocki, 1984). Executive actions such as this do not reflect the inter-branch cooperation that Congress envisioned when drafting the resolution, but rather reveal the relationship between the two branches as one where the President dictates and Congress complies, tacitly or explicitly. Looking ahead to the future, the precedent set by Presidents Reagan and Ford continue to influence presidential manipulation of the War Powers Resolution. There exists evidence of this in the fact that President Clinton’s administration, after deploying forces to Haiti, referred to the resolution positively by naming it “as another weapon to add to its ever-expanding arsenal of claims for presidential war-making power” (Adler & Fisher, 1998) due to the fact that executive branch had managed to morph the resolution’s usage to grant the President unchecked ability to go to war “as he deems necessary against anyone, anytime, anywhere, for at least 90 days.” (Adler & Fisher, 1998). These examples represent just a few of the many instances whereby Presidents have twisted and bent the War Powers Resolution to make its usage in practice alien to the intentions which drove its passage. The War Powers Resolution embodied Congress’ attempt to reign in presidential power by imposing restrictions on the President’s ability to unilaterally engage in military conflicts. Congress tried to bolster the foundation of its intentions in this resolution by citing its constitutionally granted exclusive right to declare war; however, in practice this basis for their claim comes into conflict with the President’s claim to war-making power, the basis of which resides in his Commander-in-Chief powers. This conflict of interest has been a point of tension throughout much of America’s history and reaches a crucial point after the passage of the War
  • 8. Powers Resolution: Congress has established a statute that on paper strengthens its control over war-making but the consequences of this law depend on how it is used in practice. If Congress firmly stands by its intentions and enforces them politically then they have achieved their goal but if they meekly allow the President to walk all over them then the resolution inhibits their goals and intentions by setting a precedent that not only will Congress fail to exert its powers, but will acquiesce as their powers are de facto transferred to the President. Much to the chagrin of those in favor of congressional control over war-making, the latter of these situations has been the reality as presidents have time and time again manipulated, evaded and morphed the War Powers Resolution as they saw fit, with little to no political resistance from Congress, who the resolution supposedly strengthens in the war-making realm of governance. The overall outcome of this resolution was to “legalize a scope for independent presidential power that would have astonished the Framers, who vested power to initiate hostilities exclusively in Congress.” (Adler & Fisher, 1998) Until Congress can firmly assert its rightful constitutionally granted powers to initiate military conflicts, presidents will continue to take advantage of legislative weakness to morph and distort the War Powers Resolution to suit their own interests and freely engage in unilaterally decided military actions with impunity.
  • 9. Works Cited 1. Grimmett, Richard. "The War Powers Resolution: After 30 Years." Federation of American Scientists. Congressional Research Service, 11 Mar. 2004. Web. 24 Apr. 2015. http://fas.org/man/crs/RL32267.html 2. Library of Congress. "War Powers." War Powers. 28 Feb. 2014. Web. 24 Apr. 2015. http://www.loc.gov/law/help/war-powers.php Scholarly Sources 1. Adler, David, and Louis Fisher. "The War Powers Resolution: Time to Say Goodbye." Wiley Online Library. Political Science Quarterly Vol. 113. Issue 1. Pp. 1- 20, 1 Apr. 1998. Web. 25 Apr. 2015. http://onlinelibrary.wiley.com/doi/10.2307/2657648/abstract 2. Carter, Stephen. "The Constitutionality of the War Powers Resolution." JSTOR. Virginia Law Review Vol. 70. No. 1, (Feb. 1984) pp.101-134. Web. 23 Apr. 2015. http://www.jstor.org/stable/1072825?seq=2#page_scan_tab_contents 3. Rubner, Michael. "The Reagan Administration, the 1973 War Powers Resolution, and the Invasion of Grenada." JSTOR. Political Science Quarterly Vol. 100, No. 4 pp.627-647, January 1986. Web. 23 Apr. 2015. http://www.jstor.org/stable/2151544?seq=3#page_scan_tab_contents 4. Vance, Cyrus. "Striking the Balance: Congress and the President Under the War Powers Resolution." Penn Law: Legal Scholarship Repository. University of Pennsylvania Law Review, 1984. Web. 24 Apr. 2015. http://http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=4020&context=pe nn_law_review
  • 10. 5. Zablocki, Clement. "War Powers Resolution: It's Past Record and Future Promise." Digital Commons @ Loyola Marymount University and Loyola Law School. Loyola of Los Angeles Law Review, 1 June 1984. Web. 25 Apr. 2015. http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=1429&context=llr

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