PREPARED STATEMENT OF PETER WEISS Mr. Chairman, Members of the Panel: I appreciate this opportunity to appear before you on behalf of the Center for Constitutional Rights (CCR). CCR is a public interest law firm which has, for the past twenty years, sought to advance, through litigation and education, the cause of constitutional government in this country. To this end it has, inter alia, represented members of Congress and religious and civic groups in cases involving separation of powers questions concerning foreign affairs, as well as the duty of the executive and legislative branches to observe, and of the courts to enforce, the mandates of the constitution in the conduct of foreign affairs. CCR litigated two of the only three cases brought under the War Powers Resolution (WPR) so far, Crockett v. Reagan, 558 Fed. Supp. 893 (D.D.C. 1982), aff'd per curiam 720 F.2d 1355 (D.C. Cir. 1983), cert. denied 104 SC 3533 and Sanchez-Espinosa v. Reagan, 568 F.Supp. 596 (D.D.C. 1983), aff'd 770 F.2d 202 (D.C. Cir. 1985, involving United States activities in El Salvador and Nicaragua, respectively. CCR also participated in Conyers v. Reagan, 578 F.Supp. 324 (D.D.C. 1984), appeal vacated as moot 765 F.2d 1124 (D.C. Cir. 1985), a case arising out of the invasion of Grenada but brought under the War Powers Clause of the Constitution rather than WPR. For purposes of this presentation, I shall take the following propositions for granted, fully aware that there is a measure of disagreement in legal, academic and political circles on some if not all of them: 1. The Framers intended the War Powers Clause are declared or approved by Congress. 2. Neither the President's duty to conduct the 3. Over time, the war-making power has increasingly been seized by the executive and correspondingly relinquished by the legislative branch. 4. This unconstitutional shift reached its height during the Vietnam War, resulting in the passage of the WPR in 1973. 5. The WPR is not a constitutional amendment; it seeks to implement the War Powers Clause by providing a mechanism for reminding both Congress and the President of their constitutional roles and for terminating a Presidential war unless Congress expressly sanctions it. 6. The WPR has not worked. For an extensive, documented exegesis of these points I respectfully refer the members of this Committee to the excellent article, "The Force of Law: Judicial Enforcement of the War Powers Resolution", by my CCR colleagues Michael Ratner and David Cole. It appears at 17 Loyola of Los Angeles Law Review 715. There are a number of reasons why the WPR has not worked. They include the misguided notion, held by a succession of Presidents, that there are certain alltranscending powers "inherent in the Presidency" (sometimes this is put as "the constitution is not a suicide pact"); the reluctance of Congress to stay the hand of the President when American lives are, or are perceived to be, at risk ("the rally round the flag" syndrome); and the varieties of abdication to which courts have resorted when called upon to perform their power-balancing function, i.e. to correct the overzealousness of a President or the timidity of a Congress. In the remainder of this statement, I shall concentrate on the role of the courts. The most recent example of the varieties of judicial abdication is the decision of the United States District Court for the District of Columbia in Lowry v. Reagan, 676 F.Supp. 333 (D.D.C. 1987). This case arose 93-280 89 - 21 out of the President's failure to submit to Congress the report required by Section 4 (a) (1) WPR once it had become clear that his decision to intervene actively in the Persian Gulf had introduced United States armed Forces "into hostilities or into [a situation] where imminent involvement in hostilities [was] clearly indicated by the circumstances". Plaintiffs, 110 members of the House of Representatives, sought a declaration that events in the Gulf had triggered the Presidential reporting requirement and, consequently, an order that the President submit the required report to Congress. The President, without discussing the merits of the complaint or the constitutionality of the WPR, moved to dismiss the complaint on grounds of, inter alia, standing, equitable discretion and political question. Judge Revercomb, without deciding the question of standing, granted the motion on the second and third grounds. Equitable discretion is one aspect of the larger doctrine of remedial discretion, à relatively new doctrine favored by the District of Columbia Circuit, which holds that both declaratory and injunctive (equitable) relief should be denied where members of Congress seek the aid of the courts in a dispute with the executive branch with respect to which they have not exhausted their legislative remedies. The more ancient and more widely (i.e., in other circuits as well) followed political question doctrine counsels judicial abstinence in any of six circumstances described by Justice Brennan in the leading case of Baker v. Carr, 369 U.S. 186, 217 (1962). In Lowry, Judge Revercomb based his reliance on the remedial discretion doctrine on the fact that, in the period preceding the filing of the suit, a number of resolutions seeking to compel the President to comply with the reporting requirement had been introduced in, but not acted on by the Congress. Similar results were reached by the Circuit in Sanchez and Conyers. As to political question, Judge Revercomb held that a judicial holding that a situation of hostilities or imminent involvement in hostilities existed in the Gulf would risk "the potentiality of embarrassment from multifarious pronouncements by various departments on one question", one of the Baker v. Carr tests. He did, however, concede that if Congress had enacted a joint resolution stating that 'hostilities' existed in the Persian Gulf ... but if the President still refused to file a section 4 (a) (1) report, this Court would have been presented with an issue ripe for judicial review." Similarly, in Crockett, Judge Green held that the fact-finding in which she was being asked to engage, as to whether U.S. military advisers in El Salvador were actually or imminently involved in hostilities, was precluded by "a lack of judicially discoverable and manageable standards for resolution", but that "a case could arise with facts less elusive than these". In such a case, she said, a court might well order the President to file a report, perhaps even without a Congressional finding that a report was required. The appeal in the Lowry case has been pending in the D.C. Circuit since last February. When it is decided on any basis other than mootness, which, despite the recent cease-fire, would probably not be appropriate as long as U.S. warships patrol the Gulf it may shed additional light on the role of the judiciary in enforcing the WPR. In the meantime, what are the lessons to be drawn from the relatively brief history of WPR litigation? The principal lesson is that the courts, while recognizing the importance of the War Powers Clause, and of the WPR as reinforcing the War Powers Clause, have been disinclined to play their constitutionally mandated role in what they typically refer to as "this sensitive area." Furthermore, they have done so on grounds which sometimes strain credulity: Judges do not hesitate to find facts in the most prolix antitrust, tax or discrimination cases. Do they really lack the ability, or the standards, to decide, for instance, whether a marine receiving hostile fire pay is actually or imminently involved in hostilities? Every decision of the judiciary which is in conflict with a decision or position of one of the other two branches risks some "embarrassment from multifarious pronouncements". But the function of the courts, in the time-honored phrase of Chief Justice Marshall, is "to say what the law is", not to "avoid embarrassment". Besides, in the Lowry case, the embarrassment would have resulted, not from a "multifarious pronouncement", since the daily headlines hardly made it possible for the President to deny that hostilities were taking place in the Persian Gulf, but from ordering the President to comply with the consequences of the undeniable facts and make his report to Congress. That is not the kind of "embarrassment" Justice The application of the equitable discretion doctrine to the WPR would create a perpetual game of catchup, with Congress having to pass laws to remind the President what his duty is under previously passed laws and then passing additional laws to remind him to comply with what the second set of laws asked him to do, all of these second and third-phase laws being possibly subject to Presidential veto. That is not the way things are supposed to happen under a government of laws. What does all this tell us about whether the WPR should be repealed, left alone or amended? In an ideal society, one in which Presidents proceed strictly along constitutional paths and courts do not hesitate to bring them back when they have strayed from those paths, the WPR should be repealed. Its machinery is cumbersome, it gives the President greater leeway than he would have under the Constitution alone, it deflects attention from the central question are we in, or about to enter, a shooting war? - to such ancillary questions as when and whether the President should file a report, how that report should be worded and whether Congress should pass a concurrent resolution. But since we live in the so-called real world - albeit one which, at times, seems to be made of the stuff of nightmares and hallucinations rather than reality - we need the WPR, or something like it, to close the gap between constitutional restraint and Presidential impulse. For real world purposes, there is nothing intrinsically wrong with the WPR. What is wrong is Congress' failure to use it and the courts' failure to enforce it. Could it be improved? Yes, probably, but the attempt to do so would also risk its weakening or demise, as shown by the variety of resolutions, both pro and con WPR, introduced following the President's Persian Gulf reflagging decision. Neither I nor the Center for Constitutional Rights have any special expertise in assessing those risks. However, if a decision were made at some point to try to strengthen the WPR, the following suggestions might be worth considering: 1. Provide for an expedited judicial review |