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Almon Leroy Way, Jr.
K. CONSTITUTIONALITY OF THE WAR POWERS ACT
As was indicated above, Section 5(c) of the War Powers Act provides that, at any time after the President engages U.S. military forces in hostilities abroad, in the absence of a congressional declaration or war or a congressional statute specifically authorizing the action, (1) Congress may pass a concurrent resolution directing the President to withdraw the troops from hostilities and (2) the President must immediately comply with the concurrent resolution. Section 5(c) is seriously flawed, constutution-wise. The Section gives the force of law to a concurrent resolution, which is passed by majorities in both chambers of Congress, but is not presented to the President for his consent or veto. In the past, a concurrent resolution was passed when the two chambers desired to express the "sense of Congress" (i.e., its opinion) on a particular issue or problem and, therefore, the resolution did not have the force of law. Giving the force of law to a concurrent resolution dealing with the circumstances specified in Section 5(c) allows Congress to exercise a legislative veto over military actions initiated by the President without a congressional war declaration or authorizing statute.
In the 1930s, Congress began the practice of incorporating the legislative veto into particular legislative bills it drafted and passed. When utilizing the legislative veto, Congress would pass broadly worded legislation delegating general authority to the executive branch, but would include in the statute a provision permitting Congress to review and veto executive-branch decisions involved in carrying out the statute and to exercise such a congressional veto without having to present it to the President for his approval or veto. The legislative veto, in effect, allows Congress to legislate without its decisions on legislation being subject to the risk of presidential veto and the necessity of mustering the two-thirds vote in each chamber to override the veto.
A concurrent resolution given the force of law, for whatever purpose it is intended to serve, is clearly unconstitutional. This applies to exercise of the legislative veto through congressional passage of a concurrent resolution. Such congressional action is a violation of the presentment clause (Article I, Section 7, Clause 3) of the U.S. Constitution:
In Immigration and Naturalization Service v. Chadha (l983), the U.S. Supreme Court declared unconstitutional the legislative veto, as provided for in Section 244(c)(2) of the Immigration and Nationality Act of 1952. The Court held that the legislative veto was a resolution subject to the requirements of Article I, Section 7, Clause 3, of the Constitution. The Court, in INS v. Chadha, ruled that a simple resolution (i.e., a one-house resolution) given the force of law and employed to effect a legislative veto of executive action did not meet the requirements of Article I and was therefore unconstitutional and null and void. In invalidating the particular legislative veto being challenged, the Supreme Court rendered presumptively unconstitutional the legislative veto authorized in Section 5(c) of the War Powers Act and those authorized in more than 200 other federal statutes.
Despite its obvious unconstitutionality, Section 5(c) has never been struck down by the Supreme Court. Why? Congress has yet to invoke this section of the War Powers Act. Until Congress does invoke Section 5(c) and the constitutionality of the provision and the action of Congress in attempting to enforce it are challenged in the federal courts, the Supreme Court will not have the opportunity to rule on the question of the constitutional validity of Section 5(c) and its enforcement. In the American constitutional system, the Supreme Court, like any other American court of law, issues rulings only in cases and controversies brought before it for argument, judgement, and decision.
What about the constitutionality of other provisions of the War Powers Act? Aside from Section 5(c) and its provision for a legislative veto over executive action, I see no constitutional problems with the statute. The consultation and reporting requirements in Sections 3 and 4 of the Act and the Section 5(b) restrictions on presidential action appear to be well within the authority granted to Congress by the Elastic Clause (Article I, Section 8, Clause 18) of the U.S. Constitution:
Under the Elastic Clause, also known as the "Necessary and Proper Clause," Congress possesses full power to carry into execution (i.e., put into effect, or make operative) not only its own constitutional war powers, but also those of the President.
Thus, I do not question the constitutional validity of the provisions of the War Powers Act dealing with presidential consultation and reporting and those imposing limitations on presidential action. What I do question is the wisdom and practicality of these provisions. Taking into consideration the nature and conditions of modern warfare, how wise and realistic are the provisions? Not terribly, I'm afraid. In particular, the Section 5(b) time limit of sixty to ninety days on U.S. military deployment abroad is highly questionable, since the provision unduly restricts presidential discretion in the face of a foreign threat and invites the enemy to persevere in its aggression, encouraged and emboldened by full awareness that the time limit on the American military presence in the area will expire in the not-too-distant future. The Section 3 consultation requirements are difficult to comply with, especially when Congress is not in session. While compliance with the Section 4 reporting requirements is tedious, presidents can learn to live with them.
There is a dangerous omission from Section 5(b), which specifies only three circumstances under which the President can legally initiate U.S. military action abroad--a congressional declaration of war, a federal statute or joint resolution granting specific authorization, and/or a national emergency created by a foreign attack on the U.S.A., its territories or possessions, or its military forces. Left out of Section 5(b) is an important condition that should have been included--the existence of a serious threat to the vital national interests of the U.S.A. in a region outside American national territory, airspace, or waters. Failure to include this condition in the circumstances specified in Section 5(b) places in jeopardy the ability of the President to initiate rapid, decisive, and effective military action to confront and eliminate threats to American national security.