War Powers Act - A pragmatic Executive Branch Tool versus Constitutional Intent

[SkywardET]

This would probably be impossible though, maybe even un-Constitutional for all I know (states rights?), but otherwise, it's up to the states to each tackle this and try to fix it I believe.

In a world where we can conquer a country without a Congressional declaration of war, as required by the Constitution, I would say the Constitutionality of any process is not the primary concern of the politicians.

However, a legitimate case can be made that removing "state mandates" is Constitutional under the commerce clause, which was intended to prevent states from engage in trade wars or embargoes with each other; the current system is a massive web of embargoes in effect.

 

[Brett327]

In a world where we can conquer a country without a Congressional declaration of war, as required by the Constitution, I would say the Constitutionality of any process is not the primary concern of the politicians.

However, a legitimate case can be made that removing "state mandates" is Constitutional under the commerce clause, which was intended to prevent states from engage in trade wars or embargoes with each other; the current system is a massive web of embargoes in effect.

A declaration of war was never meant to be the only method by which conflict with another country can be carried out, and non-declatory conflicts certainly predate our own constitutional provisions. However one chooses to view this issue, the intent of the framers would be that unilaterally initiated military conflict by the executive should be constrained. The War Powers Act reaffirms this doctrine. One can argue over the semantics, but to say that we (the US) can enter into war-like circumstances "without a congressional DoW," as though the executive is doing it all on their own, doesn't really reflect the reality of how things are done. Suffice it to say that when the US enters into military conflict, it does so with the consensus of the Executive and the Congress - just as the constitution suggests. The fact that it can happen without a formal DoW is moot.

Brett

 

[SkywardET]

A declaration of war was never meant to be the only method by which conflict with another country can be carried out, and non-declatory conflicts certainly predate our own constitutional provisions. However one chooses to view this issue, the intent of the framers would be that unilaterally initiated military conflict by the executive should be constrained. The War Powers Act reaffirms this doctrine. One can argue over the semantics, but to say that we (the US) can enter into war-like circumstances "without a congressional DoW," as though the executive is doing it all on their own, doesn't really reflect the reality of how things are done. Suffice it to say that when the US enters into military conflict, it does so with the consensus of the Executive and the Congress - just as the constitution suggests. The fact that it can happen without a formal DoW is moot.

Brett

I don't wish to relive 2003, but I am 100% sure that the framers did not have OIF in mind when they left the Executive the ability to use military force without Congress having declared war. You are right, though, that it's not so much a "requirement" as it is an enumerated power.

I am of the opinion that the War Powers Act and other acts of Congress to defer or relinquish their Constitutional responsibility or authority are themselves invalid without an Amendment. There's no such thing as a "more advanced interpretation" of plain language with copious amounts of literature on the subject, except through a modern Amendment. Of course, it doesn't truly matter to a person at large what any law says, but how it is implemented. If no one stops Unconstitutional laws, then does it really matter that they are Unconstitutional?

 

[Brett327]

I don't wish to relive 2003, but I am 100% sure that the framers did not have OIF in mind when they left the Executive the ability to use military force without Congress having declared war. You are right, though, that it's not so much a "requirement" as it is an enumerated power.

I am of the opinion that the War Powers Act and other acts of Congress to defer or relinquish their Constitutional responsibility or authority are themselves invalid without an Amendment. There's no such thing as a "more advanced interpretation" of plain language with copious amounts of literature on the subject, except through a modern Amendment. Of course, it doesn't truly matter to a person at large what any law says, but how it is implemented. If no one stops Unconstitutional laws, then does it really matter that they are Unconstitutional?

But don't you agree that the intent of giving the Congress sole power to declare war was to ensure relative consensus between the Legislature and Executive for engaging in conflict and to prevent it's indiscriminate use? If so, the current set of laws (I.E. War Powers) satisfies that intent while permitting the executive to take timely action in a now fast-paced world which the framers would have had a hard time imagining or taking into account in their original document. The Executive is still legally constrained as intended. I don't know how 2003 is germane to this issue, as Congress voted for the conflict in Iraq - War Powers was never invoked.

At any rate, I think the strict constructionist view you appear to espouse, however noble, is an impossible ideal to achieve. That's why very few legal matters are interpreted this way. The notion that all of this should be resolved through amendments isn't very practical (again, goes back to that fast-paced world we now live in), or realistic. I also believe that the constitutional amendment has become somewhat of a legal anachronism. We probably aren't going to see many more of those in the future - if any. In the end, as long as everyone (or almost everyone) agrees on a framework (I.E. War Powers), then why should we fuss over the minutiae of how it's codified into law based on some constitutional technicality?

Brett

 

[SkywardET]

But don't you agree that the intent of giving the Congress sole power to declare war was to ensure relative consensus between the Legislature and Executive for engaging in conflict and to prevent it's indiscriminate use? If so, the current set of laws (I.E. War Powers) satisfies that intent while permitting the executive to take timely action in a now fast-paced world which the framers would have had a hard time imagining or taking into account in their original document. The Executive is still legally constrained as intended. I don't know how 2003 is germane to this issue, as Congress voted for the conflict in Iraq - War Powers was never invoked.

At any rate, I think the strict constructionist view you appear to espouse, however noble, is an impossible ideal to achieve. That's why very few legal matters are interpreted this way. The notion that all of this should be resolved through amendments isn't very practical (again, goes back to that fast-paced world we now live in), or realistic. I also believe that the constitutional amendment has become somewhat of a legal anachronism. We probably aren't going to see many more of those in the future - if any. In the end, as long as everyone (or almost everyone) agrees on a framework (I.E. War Powers), then why should we fuss over the minutiae of how it's codified into law based on some constitutional technicality?

Brett

My personal view on the actions by Congress before OIF was that the politicians were shrugging their duties as legislators; voting to cede responsibility.

I also wholly disagree that adhering to a strict standard in Constitutional matters is impossible or even difficult. It can easily be adapted to a changing through mechanisms where super-majorities recognize its necessity. It only becomes difficult when you attempt to expand government, as the Constitution inherently produces only a small, almost minimal government.

Furthermore, I reject the logic behind the "fast-paced world" argument for the innumerable expressions that go something like, "haste makes waste," or "anything worth doing is worth doing right," and so forth. It's reasonable to streamline processes in some cases, as the Cold War taught us, but the common theme to rush regular legal discourse is simply invalid.

Also, just something to chew on, if we can't adhere to the Constitution except by the most loose interpretations, why even have one or swear an oath to it?

 

[Brett327]

My personal view on the actions by Congress before OIF was that the politicians were shrugging their duties as legislators; voting to cede responsibility.

I also wholly disagree that adhering to a strict standard in Constitutional matters is impossible or even difficult. It can easily be adapted to a changing through mechanisms where super-majorities recognize its necessity. It only becomes difficult when you attempt to expand government, as the Constitution inherently produces only a small, almost minimal government.

Furthermore, I reject the logic behind the "fast-paced world" argument for the innumerable expressions that go something like, "haste makes waste," or "anything worth doing is worth doing right," and so forth. It's reasonable to streamline processes in some cases, as the Cold War taught us, but the common theme to rush regular legal discourse is simply invalid.

Also, just something to chew on, if we can't adhere to the Constitution except by the most loose interpretations, why even have one or swear an oath to it?

I understand you disagree with the non-constructionist view, but it's just not the reality we're living in. It's OK to be an idealist, but at the end of the day, we have to operate in the world as it is, not as we wish it would be. There are inherent tensions designed into our system of government - one being the plodding, deliberate nature of the legislature (at least that's how they're supposed to behave). This is in direct conflict with the equally legitimate need of the Executive to sometime take swift action, particularly during crises involving the military. This is exactly why War Powers was enacted. I know YOU reject it on philosophical grounds, but you have to admit that in the real world, it works pretty well and you don't see a whole lot of people opposed to it. You can say that Congress shrugged it's duties prior to OIF, but that would be incorrect. They were simply operating within the duly enacted and universally accepted legal framework for supporting or rejecting military action proposed by the Executive. In the end, what you're arguing boils down to the semantics. Is there really a functional difference between a formal DoW and a resolution to support a military action? I don't think so.

Lots of people (mostly ideologues) like to decry this or that as unconstitutional, etc, etc. Ultimately, the judiciary is the only body qualified to rule on these matters, so unless someone with standing brings a case to try whatever the cause du jour happens to be, it's the way things are going to be and the issue will be considered legal until such time as the courts say otherwise. Again, you may not like it or agree, but this is precisely how the system was designed to operate. FYI, SCOTUS has upheld War Powers on a number of occasions and has historically given the executive considerable deference in issues like this involving national security - rightfully so.

Brett

 

[kmac]

I'd like to add another point. A congressional declaration of war is simply a change in legal status for its participants. As Brett pointed out, there were many undeclared wars by the British prior to even the colonies (US). The individual rights and legal relationship by civilians and warfighters during a declared war changed from that of undeclared, according to the Law of War and Peace (1646). A war declaration meant that shipping by the enemy's allies could now be treated or that one's own navy could not be treated as pirates. That at least is the strong-Presidential viewpoint.

The strong-congressional viewpoint holds that the Declaration clause should be read broadly, and therefore Congress should authorize any fighting. That point though is really irrelevant... there have been only 5 declared wars by the US (1812, Mexican-American, Spanish-American, WWI, and WWII). With the Geneva Convention and other international laws, the purpose of declaring war has been diminished (since there are a lot more rights regardless of a declaration). From a US-only standpoint, a declaration of war enables the Alien Enemy Act (1798)

 

[Spekkio]

The fact of the matter is that requiring Congress to deliberate before every armed conflict is not practical in today's world.

The War Powers Act is a good compromise between two competing powers that exist in the Constitution -- The President's position as Commander in Chief, and Congress's power to declare war. There is nothing un-Constitutional about the act because it is clarifying, through legislation, the conflict that exists in the document.

The main issue with the War Powers act is mostly an issue with the current state of our politics. Which Congressman wants to be branded as the guy who "voted down funding for troops in conflict?" Not many, of course, so it's fairly guarunteed that if a President sends troops into an operation, Congress is going to follow with a resolution authorizing further action and funding.

 

[Uncle Fester]

Context is everything, and recall that the WPA was enacted by Congress as a rebuff to Nixon. No President has ever recognized the Constitutionality of the Act, or felt obliged to obey it, because recognizing it would cede a lot of power and authority to Congress (no President is ever going to do that voluntarily). Congress pretends like it matters but doesn't make a big deal out of it. The Supreme Court can't rule on it unless it's directly challenged in court. Otherwise, it will continue to just kind of lie there.

 

[FlyinSpy]

No President has ever recognized the Constitutionality of the Act, or felt obliged to obey it, because recognizing it would cede a lot of power and authority to Congress (no President is ever going to do that voluntarily).

Actually....

Ford & Reagan had some interesting experience with the WPA, (Ford for Vietnam in 1975 & Lebanon in 1976, Reagan for Lebanon in 1982-83). Ford had an interesting comment after he left office concerning the evacuation of Danang and his attempts to follow the WPA:

"When the evacuation of DaNang was forced upon us
during the Congress's Easter recess, not one of the key
bipartisan leaders of the Congress was in Washington.

"Without mentioning names, here is where we found the
leaders of Congress: two were in Mexico, three were in
Greece, one was in the Middle East, one was in Europe,
and two were in the People's Republic of China. The
rest we found in twelve widely scattered states of the
Union.

"This, one might say, is an unfair example, since the
Congress was in recess. But it must be remenbered
that critical world events, especially military opera-
tions, seldom wait for the Congress to meet. In fact,
most of what goes on in the world happens in the
middle of the night, Washington time." [Quoted in
Peter W. Rodman, "The Imperial Congress," THE
NATIONAL INTEREST (Fall, 1985), p. 32.]

As a compromise, Reagan also had to sign an accord that he would only keep Marines in Lebanon for 18 months - something he hated doing, but was one of those compromises that you sometimes have to suck up and live with if you want to get anything done. In fact, after he signed the accord he also sent a written statement to Congress that his agreement did not "cede any of the authority vested in me under the Constitution as President and Commander-in-Chief.... Nor should my signing be viewed as any acknowledgement that the President's constitutional authority can be impermissibly infringed by statute." So you know how he *really* felt about the whole thing.

Decently interesting summary of the whole mess can be found here: http://www.fas.org/man/crs/RL32267.html

 

[Spekkio]

Yea, that's the other side of the coin...Congress only actually meets like 90-100 times a year.

Good luck getting something passed if something goes down on a Saturday and they're not due back to work until Tuesday.

 

[phrogpilot73]

Good luck getting something passed if it has no effect on getting them relected.

Fixed it for you.

 

[SkywardET]

Lots of people (mostly ideologues) like to decry this or that as unconstitutional, etc, etc. Ultimately, the judiciary is the only body qualified to rule on these matters, so unless someone with standing brings a case to try whatever the cause du jour happens to be, it's the way things are going to be and the issue will be considered legal until such time as the courts say otherwise. Again, you may not like it or agree, but this is precisely how the system was designed to operate. FYI, SCOTUS has upheld War Powers on a number of occasions and has historically given the executive considerable deference in issues like this involving national security - rightfully so.

Brett

This is actually the heart of the matter, in my mind. If you do not take a strict constructionist view, then you are no longer living under the rule of law but under the rule of men.

The SCOTUS is not the only body qualified to rule, it is merely the only acting body that rules on such matters. Congress itself is forbade by the Constitution from many types of legislation, and the Executive is required by their oath to support and defend the Constitution and its instructions and institutions. When one or more relents in the strictness of their interpretation, then it is merely a downward spiral into looser and looser interpretations; one which I believe we are quite already on.


While the necessity of swift action may require special rules, I do not see how it is difficult to make them very clearly Constitutional. Hell, an Amendment was passed in response to Vietnam to lower the voting age; it's not rocket surgery. I just hate paper blockades. I also hate going to war; even moreso the way it was done earlier this decade.

 

[Brett327]

This is actually the heart of the matter, in my mind. If you do not take a strict constructionist view, then you are no longer living under the rule of law but under the rule of men.

The SCOTUS is not the only body qualified to rule, it is merely the only acting body that rules on such matters. Congress itself is forbade by the Constitution from many types of legislation, and the Executive is required by their oath to support and defend the Constitution and its instructions and institutions. When one or more relents in the strictness of their interpretation, then it is merely a downward spiral into looser and looser interpretations; one which I believe we are quite already on.


While the necessity of swift action may require special rules, I do not see how it is difficult to make them very clearly Constitutional. Hell, an Amendment was passed in response to Vietnam to lower the voting age; it's not rocket surgery. I just hate paper blockades. I also hate going to war; even moreso the way it was done earlier this decade.

If amendments were as easy as you suggest, then why don't we have more of them? The proof is in the pudding. It still boils down to semantics. All this "rule of law" vs. "rule of men" is rhetorical psycho-babble. It doesn't mean anything. There remains no functional difference between a formal DoW and a congressional resolution of support for military action, and that's the bottom line.

Brett

 

[bert]

This is actually the heart of the matter, in my mind. If you do not take a strict constructionist view, then you are no longer living under the rule of law but under the rule of men.

...

It is interesting that sometimes people's most high-minded sentiments turn into the most meaningless sentences. Or amusing. Maybe both.