The Fog of the War Powers Act: Why We Should Embrace the Constitution’s Ambiguity
The war in Afghanistan is the country’s longest ever, longer by a year now than Vietnam. So it’s a safe bet that as they contemplate a drawdown of troops there beginning next month, President Obama and his advisers are factoring war fatigue into their calculations.
As we extend that dubious record, and as we continue military operations in Iraq and elsewhere in the Middle East, we might pause to consider a related phenomenon: war powers fatigue.
Congress challenges POTUS
The House this week passed the latest symbolic rebuke of Obama for maintaining America’s military involvement in Libya without congressional consent, restricting some funds from being spent “in contravention of the War Powers Act.” America’s secret war in Yemen has also attracted national attention recently.
The Libya amendment and a resolution on the subject earlier this month passed by wide margins, showing rare bipartisan political consensus, if not exactly political courage. They reflected Congress’ displeasure at being bypassed on the question of sending American forces into combat. Not that Americans seem to care that much. Perhaps because the resolution was little more than an expression of opinion with no practical effect, it sparked little discussion. It only directed the administration to provide a detailed accounting of military operations in Libya – hardly a call to arms. If I hadn’t recently invited two constitutional scholars to debate the war powers issue, I wouldn’t have paid attention to it, either.
The Libya back-and-forth is the latest skirmish in a decades-long struggle between Congress and the president. The Constitution famously divides war powers between the executive and legislative branches. Article I gives Congress the authority to “declare war” and fund military operations, while Article II makes the president “commander in chief” of the armed forces.
That separation of authority over the military is one of the most fundamental features of our constitutional structure. But more than two centuries later, the war powers of the president and Congress are still fiercely contested.
The history of the War Powers Debate
In the aftermath of the Vietnam War, the country and Congress engaged in a loud debate about the issue, which led to the War Powers Act of 1973. The measure was designed to give Congress more say about whether to commit troops to the battlefield, but it’s generally considered a failure. No president, Democrat or Republican, has accepted its constitutionality, and Congress hasn’t tried to enforce it.
Numerous U.S. military actions since – including Grenada in 1983, Panama in 1989, Bosnia in 1995, and now Libya and Yemen – have been conducted without express congressional approval. As a consequence, the debate has continued to smolder without catching fire, and recent proposals to reform the War Powers Act failed to gain traction in Congress. So the question remains: Does the Constitution require the express consent of Congress to commit troops to war, or can the president act alone?
I asked that question of Jules Lobel of the University of Pittsburgh Law School, who represented the members of Congress who sued President George H.W. Bush over his assertion of unilateral authority to initiate the Persian Gulf War in 1990, as well as those who challenged President Bill Clinton’s air war in Kosovo nine years later. Lobel said that the framers, in lodging the power to “declare war” with Congress, intended to ensure that decisions to initiate warfare would not be taken lightly. As they saw it, an executive branch with the power to engage in warfare unilaterally “was too likely to squander lives and money on reckless military adventures.”
John Yoo, a law professor at the University of California, Berkeley, sees matters differently. “Our Constitution has succeeded because it favors swift presidential action in war, later checked by Congress’ funding power,” said Yoo, who shaped some of President George W. Bush’s most controversial policies in the war on terrorism. “If a president continues to wage war without congressional authorization – as in Libya, Kosovo, or Korea – it is only because Congress has chosen not to exercise its easy check. We should not confuse a desire to escape political responsibility for a defect in the Constitution.”
Which brings us back to the recent war powers votes in Congress. When the Libya operation was launched, it seemed to me that the president had ample opportunity to seek congressional authorization before initiating military operations, and I was inclined to agree with Professor Lobel that the Constitution required him to do so. But after reading last week about the administration’s operations in Yemen, I wasn’t so sure. Perhaps it’s best for the president and Congress to struggle over war powers through the political process, leaving a certain looseness in the joints. In that case, we should embrace the Constitution’s ambiguity – and recognize that some disagreements are better lived with than resolved.
Note: this post ran as an op-ed in today’s Philadelphia Inquirer.