February/March 1988 5

Foreign Relations Committee for action no later than twenty-four days before expiration of the sixty-day period. If the committee acts on the bill, or fails to take timely action and is discharged of further obligation, it would become the pending business of the Senate and be voted on within three days. If passed, the resolution would go to the House Foreign Affairs Committee for House action under a similarly expedited time-frame designed to facilitate final action by the Congress prior to the expiration of the sixty-day period.

For the Lebanon debate, which was then bogged down with inter- and intra-branch haggling over policy and tactics, the significance of triggering the sixty-day time-frame of the War Powers Resolution quickly became apparent. Three days after Senator Mathias had introduced his resolution, Senate Democrats introduced their own legislation to trigger the sixty-day period under the War Powers Act without providing any specific authorization for extended deployment. Faced with the prospect that the mechanically-driven statutory procedures could force an imminent vote under the War Powers Resolution, the Reagan Administration began negotiating with legislators in earnest, and devised a compromise resolution which President Reagan signed into law on October 12, 1983. Though the President and Congress continued to publicly disagree about whether the War Powers Resolution imposed any obligations on the President with respect to U.S. forces in Lebanon, the practical effect of the compromise resolution was to achieve the basic objective of the joint resolution introduced by Senator Mathias—

Congress was confronted with President Reagan's refusal to acknowledge that U.S. forces were confronting "hostilities” in Beirut.

congressional invocation of the War Powers Resolution and enactment of specific authorization for the Lebanon deploy-. ment within the statutory 60-day period.

Senator Adams and the Persian Gulf

The lesson in this bit of recent history must have struck home with Senator Adams after he and Senator Lowell Weicker (R-Conn.) had labored unsuccessfully for nearly two months last fall to invoke the War Powers Resolution in connection with U.S. military operations in the Persian Gulf. On November 10, a little more than two weeks after their efforts resulted in the Senate's anticlimactic adoption of the Byrd-Warner amendment (see First Principles, November/ December 1987), Senator Adams sought to trigger the priority procedures of the War Powers Resolution by introducing S.J. Res. 217.

Structurally similar to the Mathias proposal of four years ago, S.J. Res. 217 stated that the sixty-day time-frame for authorization or withdrawal of U.S. forces used to escort oil

tankers in the Persian Gulf had begun on October 19—the date on which U.S. forces fired upon and destroyed an armed Iranian platform in retaliation for an Iranian missile attack on a U.S.-flagged tanker four days earlier. It specifically authorized the continued use of U.S. forces in escort duties for only another six months after the expiration of the sixty-day period. Since President Reagan has never submitted a Section 4(a)(1) report in connection with the Persian Gulf operation, S.J.Res. 217 was clearly premised on the assertion that such a report was "required to be submitted" after the events of October 19. Upon introduction, it was referred to the Senate Foreign Relations Committee.

On November 30, the committee's failure to act upon S.J.Res. 217 within the requisite priority time limits of the War Powers Resolution resulted in an order which discharged the committee from further action and placed the measure on the Senate calendar for consideration before the end of the sixty-day period. Under the terms of Section 6, S.J.Res. 217 would then become the pending business for “equally-divided" debate and a vote within three days.

By agreement, on December 4, S.J.Res. 217 was called up on the Senate floor subject to an immediate point of order by Senate Majority Leader Robert Byrd (D-W.Va.). The basis for Byrd's procedural challenge was that during earlier attempts to invoke the War Powers Resolution "the Senate declined to decide that hostilities exist," Byrd claimed that "Igranting this resolution privileged status under the law would negate those previous actions of the Senate. Accordingly, I raise the point of order that this resolution is not entitled to the expedited procedures created by the law."

The majority leader's motives in seeking to thwart Senator Adams' plan may have been based more in Senate expediency than on any real objection to the procedure involved. Bearing responsibility for planning and moving the Senate's legislative agenda, Senator Byrd had previously acted-in devising his October compromise with Senator John Warner, (R-Va.)-to prevent the controversial Persian Gulf "war powers" debate from blocking other Senate floor business. Now, under pressure to complete work on budgetary legislation in order to adjourn before Christmas, he was not likely to allow the priority requirements of the War Powers Resolution to consume scant time and bipartisan spirit in both houses.

Even so, the point of order was substantively grounded in a procedural paradox which explains why congressional action under the War Powers Resolution is so difficult to initiate in the absence of a presidential "hostilities" report. Like the traveler who is given impossible directions, the legislator seeking to trigger the War Powers Resolution may learn that "You can't get there from here."

This is the "point" to Senator Byrd's objection. Although the "hostilities" determination is clearly a condition precedent and sine qua non for activating the War Powers Resolution, it is not at all clear hoto the existence of "hostilities" is determined when the President has not submitted a report as required by the statute. Although Senator Javits explained that Congress can start the sixty-day clock for authorization or withdrawal if it is determined that a "hostilities" report "is

First Principles

required to be submitted,” neither he nor anyone else has explained who or what will determine that such a report is required. Evidently, as Senator Byrd objected, it is not satisfactory for that determination to have been made by the sponsor of legislation seeking to authorize the continued deployment of the forces at issue. Moreover, it does not appear that adoption of such a determination by the Foreign Relations Committee would be adequate, since precisely that action in June of last year was not considered conclusive. At a minimum, it would seem that the determination would have to be made by a vote of the house in which the authorizing legislation is to be introduced.

Given the importance of this determination to effectuating the purpose of the War Powers Resolution, it seems strange that Congress would provide a specific, expedited process for legislative action pursuant to such a determination but not provide a process to insure that a timely determi

By agreement,... S.J.Res. 217 was called up on the Senate floor subject to an immediate point of order by Senator Byrd.

nation is made. Yet, as Senator Adams has discovered, the priority procedures of the War Powers Resolution cannot be used to avoid filibuster and delay in deciding the "hostilities" issue because they only come into play after the decision has been made. Thus, the authorization provisions of S.J.Res.

217 could not be accorded "privileged status” in the absence of a previous "hostilities" determination, and the "hostilities" determination, which had been thwarted by endless debate and procedural stalls, could not be advanced through expedited consideration as a part of S.J.Res.217.

In any event, the point of order as stated by Senator Byrd was submitted to the Senate without debate or further elaboration and, by voice vote, was considered "well taken." But this apparent, procedural roadblock had been carefully arranged between the parties beforehand. Senator Adams, though denied his "war powers" vote on this particular day, had secured in exchange the Senate's commitment to a procedure which would allow the "hostilities" issue to be addressed by the Senate at a future time during the 100th Congress, without first having to overcome filibusters and procedural motions for delay. By unanimous consent, it was ordered that, for the remainder of this Congress, "a point of order raised by any Senator against the privileged status of a measure that has been laid before the Senate and initially identified as privileged for consideration upon its introduction under the War Powers Resolution... shall be submitted directly to the Senate" and decided by vote after 4 hours of "equally-divided” debate.

The fate of the U.S. forces still engaged in escort duty in the Persian Gulf cannot, of course, be predicted. Yet, it is not unlikely that the Senate procedure adopted on December 4 will be employed to challenge another resolution introduced by Senator Adams sometime before the end of the 100th Congress. At such time, it will be seen whether Congress can find a way to get on with its responsibilities under the War Powers Resolution, beginning, as it must, with a determanation that the requisite "hostilities” exist. ■

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Continental Congress, as well as most of the newly drafted state constitutions, provided for extensive legislative control over foreign and military affairs. The drafters of the Constitution, therefore, sought to provide a balance between the management of war once begun (clearly an executive function--legislative control over General Washington in the early parts of the Revolutionary War proved disastrous) and the initial decision to engage in war (a right reserved for the representatives of the people). The result called for shared control.2

The Senate Foreign Relations Committee articulated this conclusion in 1973 in its report on the War Powers Resolution:

[T]he Committee reiterates its view that the Constitution is not at all imprecise in allocating the war powers, on the contrary, the Constitution is quite specific-as the Framers intended it to be-in giving Congress the authority to decide on going to war and in giving the President the authority, as Commander-inChief, to respond to an emergency and to command the armed forces once a conflict is underway. In brief, the Constitution gave Congress the authority to take the nation into war, whether by formal declaration of war or by other legislative means, and the President the authority to conduct it'

What has emerged since the ratification of the Constitution is a general concession by Congress of its share of the war powers to the President. Over the next 180 years, Congress has come to yield its power to the President in virtually every military engagement of troops initiated by the President, culminating with the Vietnam War.

This state of affairs developed as much from congressional deferral to the President as from presidential "usurpation" of Congress's role. The point, however, is not who is to blame for the change of status; rather, the point is how Congress can and should reestablish its role in the war making area.

Congress Reasserts its War Power Responsibilities

In 1969, members of Congress began to develop legislation that would clarify and standardize the war power relationship between the two branches. The result was the War Powers Resolution of 1973. The final bill, as passed into law over President Nixon's veto on November 7, 1973, was the result of a significant compromise between the two houses that conceded as much as it asserted Congress's authority and ability to restrict the President's unilateral war powers.

Congressional opposition to presidential war making heightened as the war in Vietnam continued to escalate through the late 1960s. In 1969, the Senate passed the "National Commitments Resolution," a non-binding "sense of the Senate resolution asserting the need for joint legislative and executive approval (by treaty, statute, or concurrent resolution) before the engagement of any U.S. troops outside of U.S. territory."

In 1970, the House overwhelmingiy passed a war powers resolution that recognized the President's authority to use force without prior congressional authorization only in extraordinary and emergency situations (although it did not specify what the

situations were); the resolution required that the President consult with Congress whenever feasible before sending troops into armed conflict."

Hearings and debates continued in Congress over the next three years as the war in Vietnam persisted. Each house passed its own version of a war powers act in 1972, but the two houses were unable to reach a compromise during that session. In 1973, with the President having withdrawn U.S. troops from Vietnam, Congress reconvened determined to assert its authority in ending all U.S. involvement in Southeast Asia-U.S. military involvement still continued in Cambodia. July 1, 1973, saw the first legislation ever passed to limit United States military activity in Southeast Asia; a bill was passed requiring the President to cease all bombing of Indochina by August 15. The House and Senate then took up battle over how to control the President during future military engagements.

Senate Bill 440

The Senate version of the War Powers Act-S. 440-wa crafted by Senators Javits, Eagleton, and Stennis. Like so many legislative teams, the three brought together a mix of ideology, allegiance, and motive in drafting their bill. But they all agreed on the need for the Congress to reassert its institutional role in the war making process. In the concurring words of Senator Hathaway during the floor debate over the Senate bill:

Mr. President, the war powers bill is not a tipping of the balance in favor of Congress, it is a reestablishing of the balance outlined in the Constitution, but it is a reestablishing of that balance in keeping with the necessities and requirements of the modern world. It is a bill to make clear to a future Executive that he is authorized by Congress to act in a situation of real emergency, but if he should try to move from that emergency situation into a nightmarish situation of war without the consent of Congress, no only will he have to abuse the Constitution; he will have to violate the mandate of law."

The Senate bill was designed as an articulation of the originally intended relationship between Congress and the President while preserving the President's inherent powers. In function, the bill gave prior congressional approval for the President unilaterally to commit U.S. forces into hostilities in a limited number of emergency situations consistent with the President's inherent powers. In all other situations where there was no declaration of war and no specific statutory approval, the President was precluded from committing U.S. troops without congressional approval.

There were three operational sections to S. 440.

Section 3: Section 3 of the bill articulated three exceptions to unilateral presidential action:

(1) to repel an attack upon the United States or its territories or possessions; to take necessary and appropriate retaliatory action in the event of such an attack; and to forestall the direct and

November/December

imminent threat of such an attack;

(2) to repel an attack against the United States Armed Forces located outside of the United States and its territories and possessions, and to forestall the direct and imminent threat of such an attack;

(3) to protect citizens of the United States while evacuating them as rapidly as possible from any country in which such citizens, there with the express or tacit consent of the government of such country, are being subjected to a direct and imminent threat to their lives, either sponsored by such government or beyond the power of such government to control: Provided, that the President shall make every effort to terminate such a threat without using the United States Armed Forces: And provided further. That the President shall where possible, obtain the consent of the government of such country before using such armed forces.

The Senate saw these three exceptions as the limit of presidential discretion in the unilateral use of armed force, these exceptions were seen, in essence, as the broadest interpretation of the Framers' original intent to preserve for the President the inherent power to repel sudden attacks upon United States territory. (As James Madison noted, Congress's power was changed from "make war" to "declare war" simply to leave "to the Executive the power to repel sudden attacks.")

Objections to these limitations centered on the notion that such specifications might be underinclusive, the President should not be prevented from responding to some unforeseen emergency that does not fall within any of the three exceptions. The effect of this legislation would be to tie the President's hands. Thus there should be no specific delineation of what the President can and cannot do.

In response to the accusation that the Senate bill would "do what the Founding Fathers felt they were not wise enough to do, anticipate the unlimited variations of future events when defensive measures may be needed," Senator Javits stated that:

mandate of Congress enumerated so comprehensively in article I, section 8 of the Constitution. Section 5 rests squarely and securely on the words, meaning and intent of the Constitution and thus represents, in an historic sense, a restoration of the constitution balance which has been distorted by practice in our history and, climatically [sic], in recent decades.!!

Section 5 required Congress's participation and approval for the continuation of any and every use of military force. The only exceptions to this requirement were to allow for the necessity of gradual withdrawal amidst hot combat beyond thirty days and the inability of Congress to assemble due to an armed attack. Critics claimed the bill was cowardly because it allowed Congress to force the President to act without taking any action itself-if Congress did nothing, the 30 day period would end and the President would have to withdraw. But the alternative, requiring a majority vote to order a withdrawal, would be subject to the President's veto; that scenario would have left the President in essentially the same position as he would be without the legislation. It would effectively gut Congress's powers.

More accurately, the bill simply represented a cautious, and one could say a skeptic's, view of all uses of force. The bill presumed against such use, and put the burden on the President to demonstrate its necessity. The bill was not meant to encourage congressional inertia and inaction. On the contrary, it was "an important objective of this bill to bring the Congress...into any situation involving U.S. forces in hostilities at an early enough moment so that Congress's actions can be meaningful and decisive in terms of a national decision respecting the carrying on of war."12

Responding to similar questioning of whether Congress could impose any time limitation on the President's power to repel, or forestall, an attack on the United States, the Committee Report responded:⚫

The bill rejects the hypothesis that the Congress, if it were physically able to meet, might not support fully all necessary measures to repel an attack upon the nation. Refusal to act affirmatively by the Congress within the specified time period respecting emergency action to repel an attack could only indicate the most serious questions about the bona fides of the alleged [sic] attack or imminent threat of an attack."

The Report referred to a statement by Abraham Lincoln in 1848 as perhaps the clearest admonition of this problem:

Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you will allow him to do so, whenever he may choose to say he deems it necessary for such purpose--and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect.... If, today, he should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him? You may say to him, I see no probability of the British invading us but he will say to you be silent; I see it, if you don't. 14

The bill also provided for expedited procedures in both houses in order to make the war powers issue the pending order of business as soon as it is introduced and to prevent it from being (continued on page 4