Playing politics with war powers

Last Friday, June 3, the House of Representatives defeated, by a 265 to 148 vote,  a resolution offered by Rep. Dennis Kucinich (D-Ohio) that would have required President Obama to stop all U.S. military operations in Libya within 15 days. Rep. Kucinich invoked the 1973 War Powers Resolution to support his proposal, claiming that it limits to sixty days (absent congressional approval) the president’s commitment of U.S. forces to hostilities.

The War Powers Resolution is an artifact of the Vietnam Era. Passed into law in 1973 over President Nixon’s veto, it has been a very serious bone of contention between the executive and legislative branches ever since.

{mosads}On its face, the War Powers Resolution purports to limit the president’s authority to commit American forces to hostilities, or into situations where imminent involvement in hostilities is likely. Among other things, the resolution requires consultations with Congress and that reports be made to Congress within 48 hours of any actual deployment. In most instances, the resolution also requires that U.S. forces be withdrawn within 60 days of such a report, unless Congress has affirmatively acted to approve the deployment, either by a declaration of war or other form of specific statutory authorization.

Ever since the War Powers Resolution became law, presidents have made clear that — whatever its reporting requirements may be — it does not and cannot limit their constitutional authority as chief executive and commander in chief to commit U.S. forces into armed conflicts around the world. Indeed, although numerous reports have been made to Congress after the deployment of U.S. troops, no president has accepted that the War Powers Resolution governs each and every use of American military force, or that it requires any specific congressional authorization before the president can send U.S. forces into harm’s way or can keep them there.

The current administration is no different. A Justice Department legal analysis, prepared with respect to the current Libyan mission and dated April 1, 2011, identified as “one possible constitutionally-based limit” on the president’s “authority to employ military force in defense of important national interests — a planned military engagement that constitutes a ‘war’ within the meaning of the Declaration of War Clause may require prior congressional authorization.” 

This is certainly true, although determining what constitutes a “war” for these purposes is notoriously difficult and requires a careful analysis of the conflict’s likely duration, scope and the decisiveness of the goals being sought by the warring parties. Thus, the closer one gets to an all-out war between major military powers involving protracted and intense combat, with the total defeat of the enemy being the goal, the stronger is the argument that the congressional declaration of war or, at least, congressional authorization, is constitutionally required. As a practical matter, every president faced with a conflict that arguably met these tests (the first and second Gulf Wars, for example) since the War Powers Resolution was enacted, has obtained a congressional authorization. The Libyan operation, whatever its policy merits, does not come anywhere close to meeting these tests.

Significantly, this conceptual approach, which distinguishes among different types of military engagements, is also consistent with the longstanding historical practices, going back to the Republic’s earliest days. Presidents have committed U.S. forces to combat dozens of times in the past two hundred years, although the United States has never entered a direct conflict of a nature, intensity and duration that would have required a declaration of war when the Constitution was adopted, without either a declaration of war or congressional authorization.

All of this does not mean, of course, that Congress cannot bring to a halt virtually any use of military force by the president. It can do so by using the power of the purse, to cut off the funds for a particular military engagement, or by specifying in the defense appropriations bill how all of the monies are to be spent, thereby leaving the president with no discretionary funds. This affirmative use of congressional power is transparent and may well cause Congress to pay a political price. Not surprisingly, Congress has used this authority very sparingly.

In fact, the War Powers Resolution is almost invariably cited in those circumstances where it is very far from clear that any declaration or other form of authorization is constitutionally required before the president deploys U.S. forces (as is the case with regard to Libya), and where the political will simply does not exist in Congress to take effective action — as through the appropriations process — to limit a president’s ability to commit U.S. troops on the ground. It is, in short, a rhetorical weapon rather than a truly meaningful limit on presidential power.

It is true that President Obama has yet to articulate very clearly our goals in Libya and the justification for continued U.S. involvement there — although Moammar Gadhafi’s quondam role as the world’s premier state sponsor of terrorism (before al Qaeda’s debut in the late 1990s), and especially his regime’s undoubted and undeniable responsibility for the murder of hundreds of innocents over Lockerbie, Scotland, in 1988, should speak for themselves. But invocation of the War Powers Resolution last week, and especially the support given Rep. Kucinich by 87 Republicans, can properly be dismissed as a political stunt.

Rivkin and Casey, Washington D.C.-based attorneys, served in the Justice Department during the Reagan and first Bush administrations.