1988] WAR POWERS ACT 1395 situations, they are most unlikely to recognize any substantive limits on their authority. The same experience teaches that Congress cannot be counted on to enforce any such set of limits either. That seems to leave the courts, and of them we will have a good deal to say later on. This, however, does not seem the optimal place to expect them to take a stand. Judicial enforcement of an "operational" section 2(c) would take the form of a finding that the President had exceeded the legal justifications for intervention and a consequent order that he remove the troops. Such an order may not be unthinkable, but it is one that courts would understandably be very reluctant to enter. Judicial intervention seems much more likely in support of the House of Representatives' "procedural" approach. For if the order is simply that section 4(a)(1) has been satisfied and the clock has thus been started, the effect will be to "remand" to Congress the question whether the troops stay. Experience thus suggests that if there is to be enforcement of the War Powers Resolution the judiciary must become involved, and common sense suggests that judicial assistance is more likely to be forthcoming in support of the House approach. Since section 2(c) cannot plausibly be made enforceable, its continued presence does more harm than good, and it too should probably be repealed. D. Section 5(c) All "procedural" approaches are not created equal, and not all of those contained in the existing War Powers Resolution are equally susceptible to being made workable. Section 5(c) provides that within the 60-day period, Congress can by concurrent resolution direct the President to remove troops he has committed to hostilities.48 A plausible argument can be made that this section was rendered invalid by the Supreme Court's 1983 decision in INS v. Chadha.49 For this reason, it too provides an excuse to condemn the entire Resolution as “unconstitutional." Since Congress's proclivities in this area virtually insure that 5(c) never would have been invoked anyhow, it too should be removed. In fact, section 5(c) does not appear to be unconstitutional. Even assuming that Chadha makes sense, 50 it seems distinguishable.51 (In 48. Once the hostilities in question have received “specific statutory authorization," 5(c) no longer applies. Cf. infra note 55. 49. 462 U.S. 919 (1983). The unconstitutionality of 5(c) under Chadha has seemed obvious to many-so obvious to the congressional plaintiffs in Lowry v. Reagan, 676 F Supp. 333 (D.D.C. 1987), for example, that they conceded it even though 5(c) was not involved in their case! Id. at 335. 50. Chadha is helpfully analyzed in Strauss, Was There a Baby in the Bathwater? A Comment on the Supreme Court's Legislative Veto Decision, 1983 Duke L. J. 789 51. Others have attempted such a distinction. Dean Casper has correctly observed that accepting Chadha's logic would mean that the President, “supported only by onethird plus one of the membership of either house," could start and sustain a war (at least until the clock has run). Casper, Constitutional Constraints on the Conduct of Foreign 1396 COLUMBIA LAW REVIEW [Vol. 88:1379 deed it is a little bizarre to regard this congressional effort to reassert its constitutional authority to decide on war and peace as a violation of either the separation of powers or the system of checks and balances.) Section 5(c) does not fit the profile of a standard "legislative veto" wherein Congress has delegated certain powers to the executive branch and then attempted to pull them back by reserving a right to veto executive exercises of the delegation. Instead, it should be read in the context of sections 4(a)(1) and 5(b), as part of a package attempting in concrete terms to approximate the accommodation reached by the Constitution's framers, that the President could act militarily in an emergency but was obligated to cease and desist in the event Congress did not approve as soon as it had a reasonable opportunity to do so. Sixty days is essentially defined by the Resolution as the outer limit of the time Congress can reasonably be supposed to need to decide. (The additional 30 days for “unavoidable military necessity" is there to enable our troops to be withdrawn without getting killed.) However, it patently is not the notion of the Resolution that 60 days will always be necessary for such a decision. The scheme contemplates that sometime within that 60 days, whenever under the specific circumstances presented Congress can get its act together, it can either authorize continued military activity under 5(b) or indicate, under 5(c), that it is not and Defense Policy: A Nonjudicial Model, 43 U. Chi. L. Rev. 463, 484-85 (1976) (emphasis in original). But this is a universal result of Chadha-if Congress cannot veto the President's exercise of a delegation, it takes a repeal to stop him-which drives us back to the question whether the 60/90-day "free period" is truly a delegation. The common argument that Chadha is distinguishable because the power to wage war for 60 or 90 days without limit is actually inherently presidential and thus not Congress's to delegate, e.g., Stanford Note, supra note 8, at 1432, seems upside down, suggesting that Chadha may be applicable a fortiori. Professor Carter's (explicitly hesitant) argument that Chadha's presentment requirement cannot be applicable because under the Constitution declarations of war (and other combat authorizations) are not vetoable by the President in the first place, Carter, The Constitutionality of the War Powers Resolution, 70 Va. L. Rev. 101, 129–32 (1984), displays no failure of logic: it is the premise that is questionable. Carter's source for the proposition that "scholars are divided" on the question whether declarations of war are vetoable is L. Henkin, Foreign Affairs and the Constitution 295 n.5 (1972), but Henkin, who does not endorse the Carter premise himself, cites only an 1896 speech on the Senate floor, by one Senator Morgan of Alabama, in support of it. But see C. Berdahl, supra note 35, at 95; Baldwin, The Share of the President of the United States in a Declaration of War, 12 Am. J. Int'l L. 1 (1918); U.S. Const. art. I, § 7, cl. 3: Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill. Every declaration of war in our history has been signed by the President. See sources cited Lungren & Krotoski, The War Powers Resolution After the Chadha Decision, 17 Loy. L.A.L. Rev. 767, 786 n.84 (1984). 1988] WAR POWERS ACT 1397 prepared to do so. Section 5(c) thus resembles only distantly the sort of legislative veto to which the Chadha litigation was addressed. However, Chadha is "a work of mechanical simplicity" that suggests no inclination to distinguish among provisions that bear any resemblance to that involved in the case,52 a reading buttressed by the sweeping references of the concurrence and dissent.53 There is thus a significant possibility that in the event section 5(c) ever got to court, it would be invalidated. We need not shed many tears over this possibility, however, as experience suggests that Congress would be most unlikely ever to try to invoke it. If it won't acknowledge that hostilities exist in situations like the Persian Gulf and thereby start the clock for its further decision, it certainly isn't going to order the President to remove the troops cold turkey within 60 days of his having committed them. Such an apparently useless and arguably unconstitutional provision is likely only to provide an excuse for denunciation and defiance of the entire Resolution,54 and it too should be repealed.55 In one sense this surely seems a pity, since we can understand the motivation that drove 5(c), a desire to avoid giving the President carte blanche to keep troops he has committed on his own motion in the field for the 60 or 90 days the clock is running. (Of course the clock hasn't been running, but that is a problem we will get to presently.)56 Some of our concern on this score can be allayed by adoption of an alternative proposal, to 52. Ides, supra note 9, at 630 n.101. 53. Justices Powell and White both indicate that they read the Court's opinion as invalidating all legislative veto provisions, 462 U.S. at 959 (Powell, J., concurring in judgment), 974 (White, J., dissenting), and Justice White specifically refers to section 5(c), id. at 970-71. Subsequent Court decisions are reading Chadha in this spirit. L Tribe, American Constitutional Law § 4-3, at 217 (2d ed. 1988). 54. Another reason it has been suggested that we need not be too upset over the probable unconstitutionality of 5(c) is that constitutional or not, the President would almost certainly heed a concurrent resolution calling for an end to hostilities. See Libya Hearings, supra note 8, at 133 (testimony of W. Taylor Reveley). That may be right, but Chadha is likely to give Congress yet another reason not to pass such a resolution. 55. Should Congress decide to keep 5(c)—perhaps (fat chance) in order to pass a concurrent resolution and thus force a test case-other problems should be considered. Professor Glennon, writing before Chadha, suggested that 5(c) be “amended to apply the concurrent resolution termination procedure to situations in which the armed forces are used pursuant to specific statutory authority." Glennon, Strengthening the War Powers Resolution: The Case for Purse-Strings Restrictions, 60 Minn. L. Rev. 1, 37 (1975) However, such an extension manifestly could not be constitutionally defended on the theory elaborated in the text; indeed there is a danger that by blurring the rationale for 5(c) it could serve to sink the entire provision. Section 5(c) also does not apply in 4(a)(2) or 4(a)(3) situations or, indeed, in 4(a)(1) situations where there are not actual hostilities but only the imminent likelihood thereof. This last surely should be remedied if 5(c) is retained. I recommend elimination of 4(a)(2) and 4(a)(3), see infra text accompanying notes 77-78. Were they, and 5(c), retained, however, their relation too would be a candidate (though not such a clear one) for repair. 56. See infra text accompanying notes 75-113. 1398 COLUMBIA LAW REVIEW [Vol. 88:1379 shorten the 60-day period to 30 days.5 57 E. Shortening the "Free Period" to Thirty Days The only legitimate theory that supports giving the President 60 free days is that it approximates the time it will take Congress to gather its thoughts about whether the United States should become involved in the war in question. However, in considering whether that is an appropriate length of time, we are by hypothesis discussing a situation in which the President has started the clock by filing a 4(a)(1) report, or had it started for him. Realism thus demands that we think in terms of a 90-day clock. (Obviously the period will not be extended if the clock hasn't been started, but once it has, the President will very likely take advantage of the 30-day extension. The IndoChina war was dragged out for years on the theory that we were in the process of withdrawing our troops.) Ninety days, however, is an indefensibly long estimate of how long it should take Congress to decide whether the President's "emergency" response should be made more permanent. So is 60 days.58 All the declarations of war in our history have been considered 57. See Libya Hearings, supra note 8, at 122 (testimony of Archibald Cox). Thirty days was the period specified in the Senate version of the War Powers Act. See Committee on Foreign Affairs Study, supra note 8, at 83. 58. This can hardly come as a surprise, given that the 60/90 arrangement was a compromise between the Senate version's 30 days and the House's 120. Some in Congress objected to this feature at the time. See, e.g., Committee on Foreign Affairs Study, supra note 8, at 154. A few, notably Senator Eagleton, voted against the Resolution substantially on the ground that it gave the President 90 days to wage war at will, but others voted for it despite such scruples, regarding this as an opportunity to weaken President Nixon. Representative Abzug switched her vote in the belief that an override could “accelerate the demand for the impeachment of the President," and one Senator confided to Eagleton, "I heard your argument. I agree with you. I love the Constitution, but I hate Nixon more." T. Eagleton, supra note 34, at 215, 220. An alternative would be to try to write the constitutional requirement into the Resolution essentially in haec verba, providing that if a reasonable period has passed (for the President to come to Congress and Congress to respond) and specific statutory authorization has not been forthcoming, hostilities are to be terminated. I don't see how this could work. Experience strongly suggests that the President would not be scrupulous about getting to Congress promptly, and that Congress would not prove effective in getting him to do so. It is true that the courts have been relatively successful in interpreting somewhat comparable commands, such as the requirement that police apply to a magistrate for a search warrant as soon as it is reasonably possible to do so. In our case, however, the facts are less compassed—those bearing both on the President's inevitable claim that the operation had to be commenced suddenly and in absolute secrecy, and on how fast Congress can react. (Since motives will be mixed, it will be next to impossible to separate admissible problems from faintheartedness.) It thus seems extremely unlikely that there would ever be a case in which the period selected would be less than 30 days. Moreover, the court's remedy in such a situation is unlikely to be a simple order that the President withdraw the troops. Instead, it would probably "remand" the issue to Congress for its prompt consideration, cf. infra text accompanying notes 110-113, and that would probably require the setting of an exact time limit! A central contribution of the War Powers Resolution was to translate the Constitution's generalities into 1988] WAR POWERS ACT 1399 and voted on almost immediately after the President's request. Yet it was demonstrably the judgment of the framers of the Constitution, as it should be ours, that the only wars we ought to be involved in are those it is quite apparent are justified.59 The fact that declarations of war have generally been immediately forthcoming is a knife that cuts both ways, however, and one might take solace in the 60- or 90-day period on the theory that although Congress will probably approve anything at first, passions may settle after two or three months.60 To this there are two answers. First, it seems a very troubling theory on which to construct a free period for presidential war making. So viewed, the period ceases to be an estimate of how long it will take Congress to consider the matter and becomes, instead, a delegation of legislative power to the President more open-ended than any declaration of war (because it does not specify in any way-by geographical locale, enemy, or precipitating condition-what war it is the President is entitled to fight for up to 90 days), so open-ended in fact as to raise serious constitutional problems. Second, insofar as experience teaches that Congress is likely to support the President at the very outset of a war, it also teaches that it is likely to be years, not two or three months, before Congress sours: it took almost a decade in the case of IndoChina. The idea that pulling the financial plug on a war represents a failure to "support our boys in the field" doesn't really make sense, because an order to withdraw can always be accompanied by ample provision to protect the boys as the withdrawal is proceeding. But it does appear to convince Congressmen-or at least, and for present purposes this amounts to the same thing, it provides a convenient rationalization. There is thus little reason to suppose that Congress is going to be more inclined to pull the plug on a presidential war after two or three months than it would have been at the outset. It is true that if the enemy knows the deal—that if the war is not approved by Congress within 30 days the troops will have to be with numbers. Here the numbers were too generous, but the impulse toward precision was sound. Leaving requirements vague helps ensure that they will not be enforced. Of course in some cases 30 days may not be enough for reasoned consideration. It is always within the power of Congress statutorily to authorize the continuation of hostilities for a limited period of time (thus giving itself more time to consider). Let us hope it doesn't become a habit, though even that would be an improvement over the present pattern, as it would evidence some consideration. 59. See infra note 93 and accompanying text. [T]he power of declaring war is not only the highest sovereign prerogative; but ... it is in its own nature and effects so critical and calamitous, that it requires the utmost deliberation, and the successive review of all the councils of the nation.... It should therefore be difficult in a republic to declare war, but not to make peace. 3 J. Story, supra note 27, § 1166; see also, e.g., I Farrand, supra note 28, at 316 (Madison); 1 Blackstone's Commentaries (St. George Tucker, app., at 269–72) (1803); W. Rawle, A View of the Constitution of the United States 109-11 (2d ed. 1829). 60. Cf. Glennon, supra note 45, at 573. |