Thinking About the Unthinkable in Ukraine
What Happens If Putin Goes Nuclear?
During the January 1991 debate on whether to go to war in the Persian Gulf, many members of Congress were delighted at the legislature's response. "The Constitution, the American people and the cause of freedom have been served well," House minority leader Robert Michel (R-Ill.) said. Senator Strom Thurmond (R-S.C.) commented, "We have demonstrated to the world the meaning of democracy." Senator Sam Nunn (D-Ga.) rose to "commend President Bush for recognizing Congress' constitutional role." And House Foreign Affairs Committee Chairman Dante Fascell (D-Fla.) exclaimed: "He [the president] acknowledged the principle! . . . This is very important. By specific language, Congress authorized the war!" After four months of controversy about the allocation of the power to make war, it seemed easy to conclude, as did Representative Richard Durbin (D-Ill.), that "the United States Constitution had prevailed."
Easy, but wrong.
Starting from President Bush's unilateral commitment to defend Saudi Arabia and proceeding to Congress' jury-rigged approval, the episode represented a textbook example of how an audacious executive, acquiescent legislature and deferential judiciary have pushed the Constitution's system of separation of powers steadily backwards toward the monopolistic system of King George III. When President Bush finally requested legislative approval in a letter to Congress January 8, 1991, he never acknowledged that statutory authorization was constitutionally required. In fact, the president said that he still believed he had the authority to act without legislative authorization. "I don't think I need it," he said the next day, and White House aides hinted that the administration had the right to defy any restrictions that Congress might impose.
In addition to raising disturbing constitutional questions, these events highlight anew the fecklessness of the War Powers Resolution and the urgent need for that 1973 law to be repealed or revised.
The War Powers Resolution provides that authority to introduce U.S. forces into hostilities, actual or imminent, can be inferred only from a provision of law specifically authorizing such an action, a provision which must explicitly refer to the War Powers Resolution. With this latter requirement Congress served warning to both the executive and the courts that the argument used during the Vietnam War would no longer work: congressional approval could not be inferred from anything other than explicit authorization.
The Senate Foreign Relations Committee explained in its report on the resolution that the provision was intended "to counteract the opinion . . . that passage of defense appropriation bills, and the extension of the Selective Service Act, could be construed as implied congressional authorization of the Vietnam War."
The congressional debate on explicit authorization for the Gulf War was effectively over long before it began. It should have begun on August 7, 1990, the day after Secretary of Defense Dick Cheney announced the U.S. commitment to defend Saudi Arabia in the event of an attack by Iraq, which had overrun Kuwait four days earlier. John Kelly, assistant secretary of state for near eastern and south Asian affairs, had previously reminded a House Foreign Affairs subcommittee that the United States had no mutual security treaty with Kuwait, and the same applied to other gulf states.
The commitment was thus made as a sole executive agreement-an agreement more sweeping in its terms than any of the seven mutual security treaties to which the United States is party, for none of those contains an ironclad commitment to go to war. The administration could have easily, and probably successfully, sought congressional approval for sending troops to the gulf. Congress was in session and was willing and able to act quickly. In fact, each house adopted measures condemning the August 2 invasion on the very day it occurred.
The train was set in motion, therefore, by a promise of dubious constitutionality. Alexander Hamilton spoke for many of the Founding Fathers when he described the requirement of Senate advice and consent to a treaty as one of the "best digested and unexceptional parts of the plan," since it was "unsafe and improper to entrust that power to an elective magistrate of four years' duration." "The history of human conduct," Hamilton believed, "does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind as those which concern its intercourse with the rest of the world to the sole disposal of a magistrate, created and circumstanced, as would be a president of the United States." Time-honored custom reinforced the proposition that a mutual security commitment could be made only with the advice and consent of two-thirds of the Senate-a requirement that cannot be dispensed with by calling a treaty something other than a treaty.
But nary a word was heard from Congress. It mattered naught that the United States was now committed to defend a feudal monarchy where women could not drive cars, adulterers were stoned and American chaplains would be forced to cover their religious insignia and conduct services clandestinely. Instead, members had nothing but praise for the president's bold response. When on August 5 President Bush announced-again with no congressional consultation, let alone approval-that Iraq's invasion of Kuwait "will not stand," members of Congress applauded. Few then cared how this invasion would be undone, or when and even whether Congress might be asked to approve its undoing. David Boren (D-Okla.), chairman of the Senate Intelligence Committee, was asked on September 12 whether the president should have at least consulted Congress before sending troops to the gulf. "No, I think the president should be supported on that point," he said. "It is extremely important that we project absolute unity." Only on November 8, when the president claimed the need for an "adequate offensive military option" and decided to double to nearly half a million the number of U.S. troops in Saudi Arabia, did congressional voices ask from what source the chief executive drew this extraordinary authority to place the nation at war without legislative approval.
The Bush administration, like its predecessor, had on other issues curiously purported to find constitutional insight in "the intent of the framers." Yet once the intent was inconveniently unsupportive, that interest vanished. And there can be no doubt that it was unsupportive. All know that the word "make" in the Constitution was changed to "declare" to permit the president to respond to sudden attacks on the United States without the need for congressional approval. But the question regarding Kuwait was not whether the president had the power to protect American civilians or soldiers from attack: the question was whether the president alone could act to place the nation at war.
On this the framers' intent was clear and abundant. Edmund Wilson wrote in 1791 that "as the law is now received in England, the king has the sole prerogative of making war. On this very interesting power, the Constitution of the United States renews the principles of government, known in England before the conquest." At the Philadelphia convention Oliver Ellsworth said that it should be easier to get out of war than into it. George Mason agreed; he was for clogging rather than facilitating war, and for facilitating peace. He was against giving the power of war to the executive because the executive could not be safely trusted with it. Writing in 1793, James Madison, the principal architect of the Constitution, addressed the scope of the executive's power to make war:
Every just view that can be taken of this subject admonishes the public of the necessity of a rigid adherence to the simple, the received and the fundamental doctrine of the Constitution, that the power to declare war is fully and exclusively vested in the legislature; that the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war; that the right of convening and informing Congress, whenever such a question seems to call for a decision, is all the right which the Constitution has deemed requisite or proper . . . 1
Madison wrote Jefferson that "the Constitution supposes what the history of all governments demonstrates, that the executive is the branch of power most interested in war, and most prone to it. It has accordingly, with studied care, vested the question of war in the legislature." Madison elsewhere wrote, "Those who are to conduct a war cannot in the nature of things be the proper or safe judges whether a war ought to be commenced, continued or concluded." And Jefferson, in an oft-quoted letter to Madison in 1789, wrote: "We have already given in example one effectual check to the dog of war by transferring the power of letting him loose from the executive to the legislative body, from those who are to spend to those who are to pay."
In The Federalist, no. 69, Hamilton explained the commander-in-chief clause:
The president is to be commander in chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as the first general and admiral of the confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies; all which, by the Constitution under consideration, would appertain to the legislature.2
Hamilton summarized the meaning of the power to declare war: it meant "when the nation is at peace, to change that state into a state of war; whether from calculations of policy or from provocations or injuries received: in other words, it belongs to Congress only, to go to war."
These observations of the framers are familiar. That their judgment retains wisdom for contemporary policymakers is suggested by the functional attributes of the two branches. One obvious advantage that Congress brings to the decision to go to war is diversity of opinion. Lincoln knew the value of diverse opinion and legislative deliberation. He said:
In a certain sense, and to a certain extent, [the president] is the representative of the people. He is elected by them, as well as Congress is. But can he, in the nature [of] things, know the wants of the people, as well as three hundred other men, coming from all the various localities of the nation? If so, where is the propriety of having a Congress?3
The safety and well-being of the U.S. forces engaged in combat are enhanced if adversaries as well as allies understand that the American public is resolutely behind them. It has been said often but is worth repeating: if a war-or any other foreign policy-cannot be sold to Congress, it cannot be sold to the American people. The national interest is ill served when a president embarks on a military initiative that lacks public support and, for political reasons, must be curtailed.
Congressional participation in a decision to use offensive force against Iraq would of course not preclude error. Congress is not immune to war-making blunders, nor is it necessarily more disinclined to use force; indeed, Capitol Hill is not territory foreign to hawkish hysteria. Yet history has provided little reason for heavier reliance on presidential judgment in war-powers matters. Lincoln said:
The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.4
Counterposed against these considerations are the advantages of sole presidential control over the decision to go to war. Few would contest the proposition that the presidency is institutionally better suited than Congress to respond to emergencies. But no emergency confronted the nation when President Bush announced the November buildup in Saudi Arabia. Whatever exigency may have attended the initial deployment of forces to that region had ended.
The administration's legal rationale for claiming sole executive power to make war was never spelled out. Its pleadings filed in Dellums v. Bush (1990) did not reach the merits, and argued merely that the court should not hear the case.5 The administration offered Congress no legal analysis, and no congressional committee demanded any. The fullest justification consisted of remarks by Secretary of State James Baker and Defense Secretary Cheney, the gist of which was that past presidents had used armed force more than 200 times, and that war had been declared only five times.6
In principle, custom surely does affect the Constitution's meaning and allocation of power. The president's power to recognize foreign governments, for example, like the Senate's power to condition its consent to treaties, derives largely from unquestioned practice tracing to the earliest days of the republic. But not all practice is of constitutional moment. A practice of constitutional dimension is regarded by both political branches as a juridical norm; the incidents comprising the practice are accepted, or at least acquiesced in, by the other branch. In many of the precedents Baker and Cheney cited, Congress objected. Furthermore, the precedents must be on point. Here, they clearly were not: nearly all involved fights with pirates, clashes with cattle rustlers, trivial naval engagements and other minor uses of force not directed at significant adversaries, or risking substantial casualties or large-scale hostilities over a prolonged duration.
In a number of the "precedents," in fact, Congress actually approved of the executive's action. Constitutionally, Congress need not adopt a declaration of war to authorize the use of armed force; a simple statute will do. The Vietnam War, for example, was validly approved by Congress in the Gulf of Tonkin resolution, and after it was repealed, in legislation authorizing and appropriating funds for the war and extending the draft. This latter "inferential authorization," however, is now foreclosed by the War Powers Resolution. Congress also validly approved in 1983 the use of armed force for 18 months in Lebanon without declaring war.
One "precedent," the Korean War, represents not a custom but an anomaly. At the outset of the war in 1950 the U.N. Security Council "recommended" in Resolution 83 that member states furnish assistance to South Korea. The Truman administration construed the measure as a treaty obligation incurred under the Constitution and requiring "faithful execution" by the president. But the argument was without merit; the U.N. Charter requires the negotiation of special agreements by the Security Council prior to requisitioning forces from member states.7 Even if the argument were correct, Secretary Baker knocked out its scaffolding on December 6, 1990, when he testified that Security Council Resolution 678, permitting the use of force against Iraq, did not oblige the United States to use force but merely authorized it. After that acknowledgment, Resolution 678 could not be called into service to substitute for explicit congressional approval.
The administration's willingness to cast off this potential rationale was significant because, prior to its approval on January 12, 1991, Congress had done nothing to authorize the use of force against Iraq. Two separate measures passed by the House and Senate in August 1990 were never enacted. Senate Concurrent Resolution 147 required House approval before taking effect, and House Joint Resolution 658 required not only Senate approval but presidential signature. Because no conference committee ever met to iron out their differences, neither body's measure was approved by the other or signed by the president. One need not therefore examine the actual wording of the two measures-both of which, as it turns out, do not even address the use of offensive force.
Some, such as Vice President Quayle, tried to squeeze approval out of legislative inaction, but that is not how the Supreme Court has ruled that Congress must express its will. In INS v. Chadha (1983) the Court held that Congress can alter the president's legal powers only by strictly adhering to the "presentment" procedure set out in the Constitution-i.e., by formally presenting a measure to the president for his signature or veto. Congress cannot legislate by saying nothing. Even if Congress had enacted into law the measures on which the vice president later relied, these measures could not constitute approval for waging war. There was no explicit reference to the War Powers Resolution, as that resolution required.
Congress can of course repeal or amend the War Powers Resolution. But if Congress had wished to approve the use of armed force against Iraq, so long as the resolution was in effect, Congress had to meet the two conditions spelled out: authorization must be explicit and it must refer to the War Powers Resolution. The authorization finally enacted by Congress on January 12, 1991, met both requirements.
One final argument concerning war powers was that the only role for Congress came after the fact-in cutting off funds if the president commenced a war that Congress did not support. Two problems inhered in this theory, both fatal. First, it read the declaration-of-war clause out of the Constitution as a separate and independent check on presidential power. The framers intended to give Congress control over waging war both before and after the decision to declare (or approve) war was made. Giving Congress a role only after the fact, however, would make its power to declare war nothing but a mere congressional trumpet to herald a decision made elsewhere. Whatever else the framers may have done to enhance the president's power, surely they did not play the neat trick of giving Congress a war power that is really no power at all.
Second, the theory flies in the face of the framers' manifest intention to make it more difficult to get into war than out of it. This approach would do the opposite. For if all Congress can do is to wait for the president to begin a war that it does not wish the nation to fight, and then cut off funds, war can be instituted routinely with no congressional approval-and seldom if ever ended quickly. The practical method of cutting off funds is to attach a rider to the Department of Defense authorization or appropriation legislation. This means, necessarily, passing the legislation by a two-thirds vote so as to overcome the inevitable presidential veto. The alternative is for Congress to withhold funding altogether-and be blamed by the president for closing down not merely the Pentagon but perhaps the entire federal government. The short of it is, therefore, that to view the congressional appropriations power as the only constitutional check on presidential war power is, for all practical purposes, to eliminate the declaration-of-war clause as a constitutional restraint on the president. Proponents of this perspective may believe that Presidents Wilson and Roosevelt could have fought World War I and World War II without prior congressional approval, but this curious interpretation would have been received with astonishment in Philadelphia in 1787.
The constitutional conclusion thus seemed clear: the president lacked power to place the United States at war against Iraq without congressional approval. Acting on this belief-after the president's November 8 announcement-56 members of Congress brought an action in Dellums v. Bush to restrain the president from war without prior congressional consent. They did not ask the court to rule that the president acted unlawfully, or for it to engage in fact-finding in an area of ongoing hostilities, or to stop a war, or to disrupt any policy or program currently in a state of execution. They argued only that the president's claim of an "offensive option," coupled with a pattern of presidential acts that raised a substantial possibility that the option would be executed, created a case or controversy justifying judicial intervention. Accordingly, they asked that the court issue an injunction ordering the president not to use offensive force against Iraq without prior congressional consent.
In the previous war powers case, Lowry v. Reagan (1987), a federal district court had dismissed a challenge by 110 members of Congress to President Reagan's alleged violation of the War Powers Resolution stemming from the reflagging of Kuwaiti tankers in the Persian Gulf.8 The court found that judicial decision of the dispute would have risked "the potentiality of embarrassment [that would result] from multifarious pronouncements by various departments on one question." The executive branch thus argued in Dellums that judicial intervention would undercut the need that the United States speak with one voice, and "lead Iraq to believe that it can ignore the president's statements of policy [and] confuse the international community."
At one level these concerns were well founded. Yet if embarrassment and confusion were indeed to be created by the granting of this relief, one was impelled to ask whether it was not the president who had brought it on himself, by announcing to the world that he had an "offensive option" that the U.S. Constitution did not give him. There is no requirement in the Constitution that the courts remain silent when a government official claims power that he does not have-even if that proves embarrassing. Avoiding embarrassment is often a principal incentive for complying with the law, and the courts cannot forsake the Constitution because some governments constituted differently than our own do not comprehend it.
As is true with the Constitution's commitment to Congress of the decision to go to war, strong policy reasons undergird the Constitution's commitment to the courts of issues relating to the constitutional allocation of powers. One reason is judicial legitimacy. It has been argued occasionally that the courts' legitimacy is undermined by "venturing into the political thicket" in cases such as this, but it must be remembered that not preventing the performance of a manifestly unconstitutional act can also undermine judicial legitimacy. It was not self-evident that public respect for the courts would have been enhanced had they sat idly by in the face of a congressionally unauthorized invasion of Iraq in which thousands of American casualties were incurred-under the din of a wrenching public debate concerning the war's constitutionality.
The argument also occasionally is heard that Congress has enough tools in its legislative box to protect its constitutional prerogatives. Congress, it is contended, could deny funds, refuse appointments, commence impeachment. But the argument ignores practical problems that frequently render those tools unwieldy. Moreover, if the argument for judicial abdication in cases such as Dellums were correct, there would be virtually no case law on foreign affairs disputes (and contrary to conventional belief, there is plenty). As the Supreme Court put it only last year, "the fact that one institution of government has mechanisms available to guard against incursions into its power by other governmental institutions does not require that the judiciary remove itself from the controversy by labeling the issue a political question."
The supposed institutional advantages of judicial restraint in cases such as Dellums are slight, whereas the drawbacks are significant. The argument against judicial resolution of the issues presented in Dellums was in reality a plea for executive hegemony, for the executive almost always wins if the courts sit on the sidelines. The reason is manifest: the executive can introduce troops swiftly, confronting Congress with a fait accompli. When the courts decline to intervene when a fundamental threat to the separation of powers is posed by the executive, then the executive, not the judiciary, becomes the ultimate arbiter of the meaning of the Constitution.
Finally, officials in both the executive and legislative branches are entitled to knowledge of the fundamental constitutional rules by which they must live. Judicial deference to the branch that happens to act first denies them this knowledge. In Baker v. Carr (1962), the Supreme Court said: "The political question doctrine, a tool for maintenance of governmental order, will not be so applied as to promote only disorder." For the court to decline to decide a case like Dellums undermines the law's predictability and indeed promotes disorder.
In Dellums, the court thus wisely declined to dismiss the case as a political question. In important dicta, the Dellums court said that the case did not present a political question and suggested that, on its merits, the plaintiffs' claim was well founded:
If the executive had the sole power to determine that any particular offensive military operation, no matter how vast, does not constitute war-making but only an offensive military attack, the congressional power to declare war will be at the mercy of a semantic decision by the executive. Such an "interpretation" would evade the plain language of the Constitution, and it cannot stand. . . . Here, the forces involved are of such magnitude and significance as to present no serious claim that a war would not ensue if they became engaged in combat, and it is therefore clear that congressional approval is required if Congress desires to become involved.
The phrase "if Congress desires to become involved" was significant. Grounded on this prerequisite, the court declined to issue the relief sought, holding that the case was not yet ripe for review. "It is only if a majority of the Congress seeks relief from an infringement on its constitutional war-declaration power," the court held, "that it may be entitled to receive it." In support of its decision the court relied on the concurring opinion of Justice Powell in Goldwater v. Carter (1979). "If Congress chooses not to confront the president," Powell wrote, "it is not our task to do so." He thus found not ripe for review the challenge by Senator Barry Goldwater (R-Ariz.) to President Carter's termination of the U.S.-Republic of China mutual security treaty because, Powell said, the dispute was between the president and a handful of senators-not the Congress.
The difficulty with the Powell approach is that it precludes the courts from invalidating an unconstitutional presidential act unless Congress first enacts a statute reiterating an existing constitutional requirement. Earlier case law, not surprisingly, revealed a willingness on the part of the courts to overturn invalid executive acts irrespective of congressional silence. In Brown v. United States (1814), Chief Justice Marshall found that the president lacked authority to seize enemy property located in the United States during the War of 1812 without prior statutory approval. Congress said nothing with respect to the seizures in question, but the president's act-carried out under an alleged commander-in-chief power-was not permitted to stand. Similarly, in Yoshida International, Inc. v. United States (1974), President Nixon's executive order imposing a ten percent surcharge on imports was held invalid on the ground that the imposition of duties represented a tax and a regulation of foreign commerce. Only statutory authorization, the district court held, could support such an act.
This approach makes sense. If the president, acting alone, promulgated a new tax code and directed executive branch officials to commence its implementation, would that not represent a plain constitutional violation that the courts have full power to overturn? There is no reason to think that under such circumstances-or the facts of Dellums, where the president claimed power to commence war against Iraq-the courts are powerless to act unless effectively permitted to do so by Congress. The judiciary is not a tail to be wagged by a congressional dog. It is an independent branch of the government, charged with the high duty of upholding the Constitution. Citizens of the United States are entitled to expect it to act accordingly.
Judicial action is particularly necessary where structural incentives pull Congress toward inaction-where ambition, to paraphrase Hamilton, cannot be counted upon to counteract ambition. Members of Congress have much to gain politically, and little to lose, by avoiding controversial issues. No vote is more career-threatening than a vote for or against war. The most advantageous political posture was thus for members to position themselves to criticize the president if the gulf policy failed and to join in the praise if it succeeded. As Senator Mark Hatfield (R-Oreg.) put it, Congress was "cheering with one hand and sitting on the other." If this seemed cynical, it was. Yet it was no less cynical than the suggestion that Congress had any real choice to approve or disapprove war after more than 400,000 troops were already placed in the Saudi desert. Most members saw that the buildup conflicted with the policy of pursuing U.N.-mandated sanctions. "All of us know the calendar, the religious holidays and weather conditions that constrain us," said Senator Nancy Kassebaum (R-Kan.) in casting her vote for war. The alternative of substantially downsizing American forces while sanctions were tested was not seen by most in Congress as a plausible option. Withdrawal, Henry Kissinger wrote, "would lead to a collapse of American credibility, not only in that area but in most parts of the world." That left one alternative: war. The New York Times on January 12, 1991, related a meeting between Senator J. Bennett Johnston (D-La.) and President Bush:
"I told him I continued to favor sanctions and asked if there was any way to withdraw any of the troops." He said Mr. Bush told him there was not. "If you cannot withdraw the troops, you have made the decision to go to war," the senator said.
Many members of Congress agreed and felt compelled to vote for a war they would not otherwise have supported because the alternative seemed worse. Thus Senator Bob Dole (R-Kan.), who said on December 30, 1990, that returning the emir of Kuwait to power "wasn't worth one American life," two weeks later led the effort to approve a war aimed at precisely that objective. Senator Charles S. Robb (D-Va.), a key administration supporter, said it would be a "fundamental mistake to give even the appearance of withdrawing our trust and support." In reality, therefore, the commitment to war-barring Iraqi capitulation-was made on November 8, 1990, when President Bush announced the offensive troop buildup. Representative Michel thus asked his colleagues after the debate finally began, "How can we turn our backs?"
On January 12, 1991, Congress approved war. But the vexing issue remained: Had the president effectively placed the nation on a virtually inevitable course toward war? And if so, what ought Congress do to avoid being confronted with a fait accompli?
The Democratic leadership of the House and Senate should have called Congress back into session immediately after the president's November 8 announcement, as senators ranging from Edward Kennedy (D-Mass.) to Richard Lugar (R-Ind.) then urged. The leadership had been given the special authority to do so under the unusual terms of the adjournment resolution. The principal argument for not acting was that there was a lame-duck Congress, and that the decision should be made by the newly elected members. But this reasoning was unpersuasive, since under the Constitution this Congress still formally held office, and in January there would be no significant turnover. Congress, after all, had given its leadership this special call-back power for precisely this sort of exigent circumstance.
Yet even in November Congress could have confronted a fait accompli. The president had already committed the nation, declaring as he did that the invasion of Kuwait would "not stand" and that the United States would defend Saudi Arabia. Would not the same question have been asked even then: "How can we turn our backs?"
Long-term structural protection for the congressional prerogative to declare war thus requires legislative involvement at that stage in the process when actual commitment occurs. Commitment, the Gulf War suggests, can occur in two ways: words and deeds-or, in constitutional terms, executive agreement or military deployment.
In the 1970s, when the reassertion of congressional power over foreign affairs reached its zenith, Congress seemed on the verge of enacting legislation to restrict the use of executive agreements. The House Foreign Affairs Committee held hearings on a bill that would have subjected certain executive agreements to the possibility of a legislative veto-again, a device invalidated in 1983 by the Supreme Court in Chadha. The Senate Foreign Relations Committee reported a measure that would have employed internal parliamentary procedures to block the funding of executive agreements that the Senate believed should be submitted as treaties. But the only measure adopted was the Case Act, which merely required that international agreements be reported to Congress. If Congress is serious about playing a role in the making of military commitments such as those to Saudi Arabia and Kuwait, the first step is to pick up where it left off and enact framework legislation guaranteeing its explicit participation.
Legislative control over military deployment is constitutionally more problematic. In the early 1970s Senator Mike Mansfield (D-Mont.) pushed legislation that would have required the phased withdrawal of U.S. troops from Europe. The executive resisted on the ground that mere deployment was a sole prerogative of the commander in chief. Congress could arguably preclude the dispatch of troops to a designated area by prohibiting any use of funds for that purpose, rather than relying on its share of the war power, but the law remains unsettled.
This dilemma underscores the most urgent need confronting Congress with the war's end: reform of the War Powers Resolution. The 1973 law is regularly and erroneously said to have been "challenged constitutionally by every president." (Ford and Carter did not challenge it.) In fact, except for its legislative veto, which after Chadha has been widely seen as invalid, the War Powers Resolution is probably constitutionally sound. Congress has never lost a war powers dispute with the president that was adjudicated on its merits by the Supreme Court, and the object and purpose of the Constitution's assignment of the war powers provide forceful reasons for upholding the legislative will. The resolution's faults are not in its constitutionality; they are in its structure.
The law's near-complete irrelevance to the events leading up to the war in the gulf speaks volumes about those defects. The sad truth is that these were known to Congress years beforehand, and Congress did nothing. The Senate Foreign Relations Committee held hearings in 1977 on legislation to correct those defects, but no legislation was ever reported because the chairman of the House Foreign Affairs Committee let it be known that he opposed any amendment. The same Senate committee established a special subcommittee in 1988 to review the resolution's failings during the Kuwaiti tanker reflagging operations. The subcommittee held illuminating hearings, but like the House Foreign Affairs Committee after its own hearings, issued no report and made no recommendations. Congress has repeatedly dropped the ball on war powers reform.
A responsible Congress would begin by reviewing the resolution's operation to determine why it has proven unworkable. It need not search far for answers. During the 1988 Kuwaiti reflagging operations the resolution was discovered to be judicially unenforceable. In Lowry v. Reagan congressional plaintiffs challenged the president's refusal to submit a required report, and a federal district court dismissed the suit. The court found, as did the Dellums court, that Congress had created no impasse and, unlike the Dellums court, that the case represented a political question. (This failure in Lowry to secure judicial enforcement helped to persuade the Dellums plaintiffs to avoid it altogether and to bring their action directly under the Constitution.) Absent judicial enforcement, Congress must recurrently consider whether to "invoke" the War Powers Resolution when it believes that the president has failed to submit a required report. But requiring Congress to enact a law to trigger the resolution effectively eviscerates that whole purpose of the resolution. It places Congress in the position of having to muster a two-thirds vote to enact the resolution's 60-day time period over the president's veto, something Congress can do in any event, with or without a War Powers Resolution.
It is time, therefore, that the War Powers Resolution either be revised or repealed. If the law is to be retained, it must be made judicially enforceable. A first step in rewriting the law is to include provisions aimed at facilitating judicial review by precluding the courts from ducking out as they did in Lowry and Dellums. The resolution can be amended to state explicitly that presidential noncompliance creates an impasse within the meaning of the ripeness doctrine, and that the political question doctrine, to the extent that its application is not mandated by the Constitution, may not be used as a grounds for dismissal.
A second step is to refine the reporting requirement. President Bush reported to congressional leaders on August 9, 1990, under the War Powers Resolution. Because he asserted that he did not "believe that involvement in hostilities is imminent," the 60-day time period was not triggered. Neither "hostilities" nor "imminent" is defined by the resolution, so it was hard to quarrel with that assessment. If that judgment now appears to have been correct, it might nonetheless be noted that there was, at that time, a not unfounded belief that Saudi Arabia was about to be attacked; that the president did tell the Iraqi people on September 16 that the two nations were "on the brink of war"; and that the administration did certify on September 20 that U.S. troops deployed in Saudi Arabia were eligible for "imminent danger" pay. A properly drafted War Powers Resolution would have caused the 60-day time period to have been clearly triggered on one of those dates, or at least on November 8, when President Bush announced his intent to move to an offensive option. Such a resolution would be a major step toward ensuring congressional participation at a meaningful stage in the commitment process.
A variety of further amendments to the resolution would enhance the prospects for genuine collaborative decision-making between the branches. The original Senate-passed version of the War Powers Resolution contained provisions that would have prohibited uses of force not specifically approved by the resolution or Congress. That provision, dropped in the conference committee, should be modified in light of subsequent experience (e.g., the legitimate need to use limited force to protect U.S. citizens in danger abroad) and incorporated in the resolution. It should be backed by prohibitions on funding, a most forceful tool since Congress' power over the purse is plenary rather than shared.
Finally, the emergence of the collective security machinery of the U.N. Security Council suggests that the council might yet become, to use Churchill's words, the "constabulary power before which barbaric and atavistic forces will stand in awe." That role presupposes the presence of U.N. forces under the direction of the council's military staff committee. Such forces would be made available by member states pursuant to special agreements with the council. In the United States, the U.N. Charter's implementing legislation-the U.N. Participation Act-requires that Congress approve any such agreement. None has yet been negotiated with any member state. The time may soon be ripe to commence that process, and an appropriate place to set forth that approval, including the conditions and restrictions under which the United States could provide standing forces to the council, would be a revised War Powers Resolution.
Ironically, therefore, an operational War Powers Resolution could play a key role in the legislative framework of any "new world order based upon the rule of law." It scarcely befits any legal regime that a centerpiece of that system-such as the resolution-should be reduced to an academic curiosity. This is doubly so with the Constitution: the rule of law is not upheld if it is honored only internationally. Respect for the rule of law implies adherence to both international and domestic legal precepts, whether they promote or obstruct favored policies. Compliance precedents are in the universal long-term interest of actors within each legal system, and noncompliance in either system ultimately undercuts an actor's standing to object to the noncompliance of others. The concept of the rule of law is incoherent if it can be honored in one system but forgotten in the other.
It is no doubt true, as Lord Bryce reminded us, that "the student of institutions as well as the lawyer is apt to overrate the effect of mechanical contrivances in politics." Most "mechanical contrivances" such as the War Powers Resolution are no stronger than the political will to enforce them, or the public outrage when they are violated. One troubling lesson of the war in the Persian Gulf may be that the political will and public outrage needed to make the War Powers Resolution work is too ephemeral to promote consistent compliance. Procedural safeguards such as the resolution, like the Constitution's balanced war powers, represent structural protections that in the long term are critical to preserving liberty. And liberty, as Judge Learned Hand said, "lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it."
More and more nations are looking to the U.S. Constitution as a model for their new domestic orders. Before they look too closely, architects of the "new world order" might consider devoting some attention to shoring up the United States' own legal order.
1 The Writings of James Madison, vol. 6, ed. G. Hunt, 1906, p. 174.
2 The Federalist, no. 69, ed. J. Cooke, 1961, p. 465.
3 R. Basler, The Collected Works of Abraham Lincoln, vol. 1, 1953, remarks in U.S. House of Representatives, p. 504.
5 The author was on the brief filed by the American Civil Liberties Union as amicus curiae in Dellums.
6 The list appears in Congressional Record S130-S135, vol. 137, daily ed., Jan. 10, 1991.
7 For an elaboration see Glennon, "The Constitution and Chapter VII of the U.N. Charter," American Journal of International Law, January 1991, p. 74.
8 The author served as co-counsel to the congressional plaintiffs in Lowry.