Between the arrows and the olive branch: the tortured path of the war powers resolution in the reagan years (1981-1987)



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BETWEEN THE ARROWS AND THE OLIVE BRANCH:
THE TORTURED PATH OF THE WAR POWERS RESOLUTION
IN THE REAGAN YEARS (1981-1987)


Terrence Edward Paupp*

Two distinct components of the issue are addressed in this paper. The first component is the constitutional question surrounding the legality, force, and impact of the War Powers Resolution. The constitutionality of the War Powers Resolution will be dealt with briefly. The second component is a foreign policy question and is the central focus of this paper.

This paper will examine the relationship between the Reagan Administration's foreign policy and its lack of fidelity to the requirements of the War Powers Resolution.

The Reagan Presidency has been characterized by its proclivity to intervene in the affairs of Third World States. In doing so, serious and fundamental questions have been raised about the administration's fidelity to the War Powers Act (Resolution) of 1973. The War Powers Act was designed chiefly to restore the balance of power between the Executive and Legislative branches of government with regard to declaring and waging of war. The problems associated with resolving this issue are multi-faceted. This paper, therefore, addresses several issues together. First, has the post-1945 era made the 1787 definition of war inoperable? It is essential to understand that "formal" declarations to engage in a more formal or traditional type of war is what the Constitution addresses and upon which the War Powers Act has had to try to expand. The 20th Century has turned into the age of "subterranean wars," of covert war, of guerilla war. In such an age, formal declarations of war become almost superfluous. Add to that the technological capacity of great powers and the variations of military involvements literally mushroom.

Second, the War Powers Act can address the procedural issues associated with military involvements, but is incapable of resolving the substantive issues that lay behind decisions of the Executive Branch to engage militarily in the world. It can, therefore, only require that wherever "imminent hostilities" will expose American combat troops to physical danger that the Congress must be consulted. The problems behind this requirement lay much deeper. The issues range from a consideration of what the foreign policy of the United States should be to larger issues such as American hegemony in the world, our alliance systems, and our strategic maneuverability in the balance of power game. All of these issues converge to make the relationship between the Executive and the Legislative branches even more tenuous with regard to American military involvements and commitments.

The War Powers Resolution was passed over President Nixon's veto. Since that time, the question of whether the Resolution is even constitutional has dominated debate over whether Congress or the President has the real power to declare war, engage in covert wars, or support U.S.-backed interventions in the Third World. Arguing the merits or demerits of the War Powers Resolution of 1973 demands an explanation of the purpose of Article I, Section 8, Clause 11, of the Constitution. That provision expressly grants to Congress the power "To declare War."' (The opponents of the War Powers Resolution, such as Professor Eugene V. Rostow,2 claim that Clause 11 confers upon Congress only a narrow piece of war power. Defenders of the Resolution, such as Professors Raoul Berger and Francis Wormuth,3 argue that the Resolution constitutes a legitimate exercise of congressional authority under the clause.)

The position taken in this paper is that the War Powers Resolution is not an "exercise" of Congressional authority under the clause but rather a "definition" of it. Viewed in that light, the War Powers Resolution serves to maintain the integrity of Article I, Section 8, Clause 11, of the Constitution. In addition, this paper asserts that a definition of this kind, coupled with a reasonable enforcement mechanism, is sufficiently within the Constitutional mandate that Congress holds to legitimately restrain, regulate, supervise, and oversee the President regarding the declaration and waging of wars. This paper also asserts that the enforcement mechanism of the War Powers Resolution is well within a proper understanding of the constitutional system of checks and balances.

The central focus here will be to examine the path of the War Powers Resolution through the Reagan years, using the events in Lebanon, Grenada, El Salvador and Nicaragua as "case studies" with respect to the Reagan Administration's compliance/non-compliance with the Resolution. Before turning attention to

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War Powers Resolution/Reagan Years J. Contemp. Legal Issues [1: 47, 19871

these issues, however, it is essential to supply a background for the discussion of these cases and the Reagan Administration's performance. Therefore, Part I of the paper will briefly consider the question: How does the Constitution contemplate the allocation of responsibility for war power? While addressing the relevance of the system of checks and balances, this question raises certain sub-issues such as the battle over the "Original Understanding" and strict intentionalism. Part II will trace the growth of Presidential power since World War II. Part III will cover Congressional reassertion of its war powers prerogative. Part IV is devoted to a contemporary assessment of President Reagan's compliance/non-compliance with the War Powers Resolution in Grenada, El Salvador, Lebanon and Nicaragua. Finally, Part V is a series of reflections on the dimensions of power and will address the issue of the potential gap between Executive privilege and prerogative as being at odds with the national interest.

I. HOW DOES THE CONSTITUTION CONTEMPLATE THE

ALLOCATION OF RESPONSIBILITY FOR WAR POWER?

Both the opponents and defenders of the War Powers Resolution invoke the blessing of the Framers of the Constitution. They seek to invoke that blessing by bringing their interpretations of the war-making power within the sanction and mandate of both the plain words of the Constitution and the statements of the Framers themselves as to their intentions. The defenders of the Resolution claim that it restores the original balance between the Executive and the Legislative branches. The opponents of the resolution charge that it is precisely this very balance that the Resolution has hopelessly upset. For example, Eugene Rostow has asserted that, "The War Powers Resolution is in profound conflict with the necessities of governance in the turbulent world of the late twentieth century." He comments that, "The War Powers Resolution will become a footnote to history, either through repudiation or desuetude."4 Professor Raoul Berger rejects Rostow's assertion that since the world of the 20th Century is contracting, the President's constitutional powers are correspondingly expanding5 because the Constitution itself withheld from the President the powers that Rostow has claimed for the President.6

In reflecting on the battle over the "Original Understanding," Stephen Carter has astutely noted that, `As with any other battle over what the Framers planned or expected, this one threatens to exhaust the ammunition on both sides long before a conclusion is reached."7 Despite the vast array of ammunition, the battle is still worth examining. It is from this stockpile of ammunition on original intent that our understanding is fortified by the repository of history. In that repository there is meaning, and that meaning is the heart of the matter in the war powers controversy.

A. The War Powers and "Original Understanding"

In numerous law review articles and in his book, Executive Privilege: A Constitutional Myth,8 Professor Berger has relied heavily on what the Framers actually wrote. His central contention in doing so is that, "The cardinal index of constitutionality is the Constitution itself, not what others have said about it."9 Article I, Section 8, Clause 11 of the Constitution explicitly vests in Congress the power "To declare War" and in Clause 18 the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers...." Finally, in Section 10, Clause 3, the Constitution asserts that "No state, shall without the Consent of Congress ... engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay." These Article I provisions are supported by the Framers' statements in The Federalist papers. Hamilton viewed the Commander-in-Chief in a less-than-kingly role. "As Commander-in-Chief," said Hamilton, "the President's authority would be much inferior" to that of the British King; "it would amount to nothing more than supreme command and direction of the military and naval forces, as first General and admiral . . . while that of the British King extends to the declaring of war and to the raising and regulating of fleets and armies--all of which, by the Constitution . . . would appertain to the legislature.i10

According to Berger, the writings of the Framers suggest that the Constitution was drafted against a background of the "repudiation of royal prerogative."" Such an assertion seems to be adequately supported when viewed against the vast array of statements from Jefferson, Hamilton, Madison, Mason, Monroe, Patterson, and others.'2 Jefferson explicitly asserted that: "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."13 By viewing the statements of the Framers from the perspective of governmental structuring, it may be possible to see their work as more than merely

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J. Contemp. Legal Issues War Powers Resolution/Reagan Years [1: 47, 1987]

setting forth an enumeration of governmental powers or a collection of political institutions. The Constitution outlines the framework of the war-making power so that certain institutional powers and responsibilities are held exclusively by one branch but not by the other. To be sure, circumstances and situations will arise in which the system of "checks and balances" will be put into operation, but the basic arrangement allows that check and balance process to be dynamic, effective, and fluid.

Of political structures, Kenneth Waltz has written that, "Structure defines the arrangement, or the ordering of the part of a system. Structure is not a collection of political institutions but rather the arrangement of them.s14 Waltz suggests that the various elements of this domestic political structure may be divided into three components or areas: "First, according to the principles by which it is ordered; second, by specification of the functions of formally differentiated units; and third, by the distribution of capabilities across those units."15

The ordering principles for the war powers, established by the Framers, vests the power to declare war exclusively in Congress. The President is only permitted to repel sudden attacks under the scheme set up by the Framers. This theory, derived from the Framers, has been called the "defensive/offensive war theory." The theory assumes that the President has the exclusive constitutional authority to defend U.S. citizens, territory, troops, and property against sudden attack or when the threat of attack is imminent. The key qualification is that the President's actions remain "defensive" in nature. That is the first principle of the President's exclusive war power. The second principle of the President's war power is that once such conduct becomes "offensive," the President lacks constitutional authority to proceed further without Con­gressional authorization obtained through either a declaration of war or other legislation.

This leads to the second point--the specification of the functions of formally differentiated units. The "defensive/offensive war theory," inferred from the Framers, contains two dimensions: (1) the defensive/of­fensive character of military hostilities and (2) the duration of such hostilities. This theory assumes that both diplomatic and military actions can be arrayed along a continuum from exclusively "defensive" in nature to exclusively "offensive" conduct. According to this scenario, the escalation of military activity transforms the nature of the President's actions from defensive into offensive conduct.16

Waltz's third point, the distribution of capabilities across these units, allows juxtaposing the defensive/of­fensive characterization of the military activity with the Congressional and Presidential allotment of respon­sibility as specified in the Constitution. But here problems arise. Is it possible to develop adequate criteria for distinguishing defensive from offensive military conduct? The real point, according to Edward Keynes, is that "Neither the language of the Constitution nor the record of the Federal Convention suggests that the Framers intended to restrict congressional discretion in authorizing or ratifying military hostilities."17 If the Constitution neither prescribes nor proscribes a particular form for ratifying or authorizing hostilities, how shall the issue of the war power be resolved? This leads to a consideration of checks and balances.

B. The Dynamic Relevance of the System of Checks and Balances: A Zone of Twilight

The very nature of the Constitutional allocation of powers between the Executive and the Legislative establishes what has been referred to as "zones of concurrent authority." That is, the two branches share a collective and concurrent responsibility for any and all outcomes that affect the national interest. Not the least of these reponsibilities is the power to commit the nation to war. By both sharing and separating certain powers of war, defense, and foreign affairs, the Framers created zones of exclusive legislative and executive authority as well as a zone of concurrent constitu,tional authority with boundaries that are rather imprecise. Indeed, this "zone of concurrent authority" has been characterized by one jurist as a "zone of twilight."'s

How should this zone resolve into a coherent constitutional scheme? What is the meaning of a "zone of concurrent authority" with regard to the system of checks and balances? Carter has suggested that the system of checks and balances should be viewed as dynamic, "as constantly in flux." What matters most, in his view, is that "the balance of power among the three branches remain sufficient to check and punish any abuses by any one of them."19 This conceptual scheme of checks and balances seems to be, in large measure, what the War Powers Resolution seeks to accomplish. That is, to restore a balance between the Executive and Legislative branches that had been previously, from the time of the American Civil War until the Nixon Presidency,20 tilted in favor of the Executive branch. The key point for Carter is that "the precise disposition of authority is subject to change." The key to maintaining constitutional balance, however, is in assuring that the changes do not so alter the balance that the Constitutional scheme loses its essential shape.21

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War Powers Resolution/Reagan Years J. Contemp. Legal Issues [1: 47, 1987]

Conceptions of political reality do change with time. The way information is selected, organized, and interpreted will result in different paradigms and in different policies. Waltz asks: "How can we decide which materials to select and how to arrange them? No inductive procedure can answer the question, for the very problem is to figure out the criteria by which induction can usefully proceed."22 The Constitutional scheme, under the system of checks and balances, seems to argue for a mutually established criteria for how the war power should be exercised. The very fact that a "zone of concurrent authority" or a "zone of twilight" exists suggests that the President and the Congress must search together, in the darkness, for. the light of reality. Therefore, sharing information with, consulting with, and seeking the advice and consent of the Congress, before embarking upon a course that could lead to war, is incumbent upon the Executive.

Keynes has noted that, "There is no conclusive evidence to suggest that the Framers intended the sweeping clause (Art.1, Sec.8, C1.18) as an unqualified grant of power that Congress could manipulate to reduce the executive to a mere ministerial agency."23 At the same time, the checks and balances system kicks in so that once a war is initiated, Congress has the constitutional authority to regulate and control the magnitude, scope, and duration of military hostilities. In this important regard, "Congress can employ its auxiliary war powers to restrict or terminate military actions that exceed the President's defensive authority."24

The "threshold theory" addresses the level of military action that shall exceed the President's authority and defines the zones of exclusive and concurrent powers. The threshold theory is a product of the 20th Century, the age of insurgency warfare and the "Imperial Presidency." Although elements of the "defensive/ offensive" war theory constituted Congressional legislation terminating U.S. military action in Laos and Cambodia on August 15, 1973, and its invocation of the War Powers Resolution during the Lebanon crisis under President Reagan, the threshold theory has increasingly come to replace the "defensive/offensive war theory."25

The threshold theory defines the zones of exclusive and concurrent power regarding the magnitude of military and diplomatic action. The theory places military and diplomatic actions on a continuum based on (1) the level of escalation and (2) the duration of hostilities. At one end of the continuum (Table I), the President maintains discretionary power to initiate limited military actions of short duration (categories 1-4). At the far end of the continuum (category 9), Congress exercises exclusive authority to initiate major actions of a long duration. Between these two categories lies the twilight zone of concurrent power (categories 5-8).



  1. Covert intelligence operations and clandestine paramilitary operations.

  2. Diplomatic actions that imply subsequent military operations, e.g., severing diplomatic relations.

  3. Deployment of armed forces in nonhostile situations, e.g., rotation of troops to meet alliance commit­ments.

  4. Mobilization of military forces, e.g., call up of army reserves.

  5. Deployment of armed forces in hostile situations, e.g., commitment of armed forces to combat zones.

  6. Limited military engagements, e.g., protection of U.S. citizens, property, and public ships, seizures, and reprisals.

7 Limited military interventions, e.g., civil commotions, claims settlements, border disputes, and preemp­tion of third party interventions.

  1. Material wars, i.e., undeclared wars: the Naval War with France, the Barbary Wars, the Civil War, the Korean War, and the Vietnam War.

  2. Publicly declared wars: the War of 1812, the Mexican War of 1846-1848, the Spanish-American War of 1898, World War One, and World War Two.

Table I: An Array of Military and Diplomatic Actions in Order of Ascending Magnitude. (Source: E. Keynes, Undeclared War: Twilight Zone of Constitutional Power 91 (1982).

II. SINCE WORLD WAR II, THE PRESIDENT HAS ASSUMED MORE RESPONSIBILITY FOR MAKING WAR THAN THE CONSTITUTION ALLOCATES

The phenomenon of "undeclared war" has characterized America's post-World War II era. Korea and Vietnam immediately come to mind. Yet, even between these two instances, a distinction exists. The Second World War did not officially terminate until April 1952, when the Japanese peace treaty went into effect. President Truman initiated military operations under operative wartime statutes and in compliance

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J. Contemp. Legal Issues War Powers Resolution/Reagan Years [1: 47, 1987]

with a United Nations resolution when he dispatched combat forces to Korea. Truman was actually enforcing the United Nations Charter, a treaty that has the force of law in the United States. The Vietnam War was different. It was the first truly modem undeclared war. Arthur Schlesinger wrote that the net effects of America's Indochina policy under Johnson and Nixon were the ultimate usurpation of the Congressional war-making power. The Presidency, in those years, asserted an unprecedented authority to make international commitments without either the consent or knowledge of Congress.26

The principles of constitutional government were often in abeyance during the Vietnam War years of 1964-1972. If the idea of the rule of law includes the proposition that the Executive is subject to law, then the Vietnam War years stood for the proposition that the Executive could act without reference to the rule of law and could do so with impunity. The Vietnam experience demonstrated a number of key factors with respect to the Constitutional history of the country in general and the power of the Executive branch in particular.

With respect to America's constitutional history, the Vietnam War years under Johnson and Nixon had vested almost absolute power in the Executive and, therefore, had come to reflect a greater deal of fidelity to the European monarchies existing at the time the Constitution was written than to the Framers themselves. If, for example, the Executive is not subject to the rule of law, then that Executive is, in Hamilton's words, no different from "the full-grown progeny of that detested parents27--the Monarchy.

With respect to the power of the Executive branch in particular, Kennedy's under-Secretary of State, Roger Hilsman, has noted that, ". . . the Executive . . . has the greater command of experts. As a consequence, it is the Executive who sets the framework in which policies are discussed, who defines the problems we will essay as a government and the alternatives from which we choose the courses of action to meet them. This command of both information and expertise gives the Executive the intellectual initiative in making foreign policy."28

The Vietnam War Years, under the Johnson Administration, created the credibility gap. Congress and the nation's people were deceived. Operating under the "Commander-in-Chief' Clause (Article II, Section 2, Clause 1 of the Constitution), Johnson sought to commit the nation to war, using the Gulf of Tonkin Resolution as affirmative authorization. When, as Justice Jackson said, the clause is invoked for the "power to do anything, anywhere, that can be done with an army or navy,s29 the commander-in-chief, as conceived by the Framers, bears slight resemblance to the role played by the President today.

The argument that the President has certain "inherent powers" under the commander-in-chief clause was rejected in Youngstown Sheet and Tube Co. v. Sawyer (1952). That case is the one notable exception, since the end of World War II, where the courts did not sustain presidential war-making and congressional ratification of the President's military actions. Justice Jackson, in Youngstown, noted:

The appeal . . . that we declare the existence of inherent powers ex necessitate to meet an emergency asks us to do what many think would be wise, although it is something the forefathers omitted. They knew what emergencies were, knew the pressures they engendered for authoritative action, knew too, how they afford a ready pretext for usurpation.3o

Jackson then discussed historical precedents where the rise of authoritative action led to the abrogation of constitutional rights. He mentioned Germany's Weimar Constitution, under which individual rights were suspended, without concurrence of the Reichstag, if the public safety was thought to be either endangered or disturbed. He cited the French Republic which created an emergency government under the title of "state of siege." Finally, he referred to Great Britain and its endorsement of a temporary dictatorship created by legislation during the dark days of the Second World War.

America's Gulf of Tonkin Resolution was different. According to Kolko:

What was crucial about the Tonkin affair was the precedent of manipulation that it created for future administration relations with Congress and the public . . . White House decisions . . . could now increas­ingly reflect external considerations rather than internal needs and constituencies, and for three years it could ignore the Congress' and the public's potentially decisive roles in vetoing the thrust of the executive's foreign policy .... 1

Kolko points out that the involvement of both Congress and the public was much more of a vital element
in American foreign policy before 1950 than after (with the exceptional interlude after the Korean War).
Between the end of World War II and the birth of the Vietnam War, by the Senate's passage of the

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War Powers Resolution/Reagan Years J. Contemp. Legal Issues [1: 47, 1987]

Gulf of Tonkin Resolution, are found the glimmerings of Executive usurpation with judicial and Congres­sional consent and acquiescence. Arguments for increasing the President's powers were set forth under the banner of "adaptation by usage." According to Berger, "'Adaptation by usage' is a label designed to render palatable the disagreeable claim that the President may by his own practices revise the Constitution, that he may disrupt the constitutional distribution of powers, considered inviolable under the separation of powers."32 He concludes his analysis of the notion by stating that: "In plain words, usurpation of power by the President, if repeated often enough, is legitimated."33 The problem of maintaining the constitutional balance with respect to the war powers is that, in the words of Henry Monaghan, "the military machine has simply become an instrument for achieving presidential foreign policy objectives."34


  1. The Commander-in-Chief Clause

The Commander-in-Chief clause was used by Madison and Hamilton to identify a role for the President once hostilities were already undertaken. In a relevant passage by Madison, the clause merely gives "the supreme Executive authority . . . to have the direction of war when authorized or begun. ..."35

In the 20th Century, the President can initiate wars through the intelligence apparatus of the Central Intelligence Agency.36 Critics of covert war have tried to legislate a requirement that any resort to paramilitary activity be congressionally authorized. Proponents of covert wars have argued against such congressional authorization because they feel that the obstacles to obtaining such authorization would be so great as to render paramilitary activities extremely difficult to achieve. Their analysis is correct. In fact, according to Lobel, the the primary reason that the Framers left the constitutional power to declare war to Congress was because of their substantive judgment that entry into war should be difficult, despite the perceived value of democratic decision-making and open debate.37

Part of the argument against Executive secrecy, and allowing the CIA free reign without Congressional oversight, is that such secrecy makes war inevitable and unconstitutionally delegates a war-making power to the Executive that Congress has no right to delegate. Cases, such as Martin v. Mott,38 are sometimes cited to support the notion of broad presidential war power under the commander-in-chief clause.39 To the contrary, the Mott language, like that of the Prize cases,40 stands for a good deal less than the proposition for which it is usually cited.41


  1. Congressional Authority and Executive Secrecy

Until the passage of the War Powers Resolution in 1973, Congress acquiesced in Presidential war-making by passing facilitative legislation and appropriations. The net effect of this course of action was to provide "retroactive" legitimacy if the President acted prior to a congressional session. Joint resolutions backing Presidents include the Formosa Resolution of 1955, the Mideast Resolution of 1957, the Cuban Resolution of 1962, the Gulf of Tonkin Resolution of 1964, and the Santo Domingo Resolution of 1965. The Mideast, Cuba and Tonkin Resolutions, however, did not state that Congress was delegating its own war powers to the President.42

A key note is that below the threshold of a declaration of war, Congress can employ its auxiliary war powers to check executive conduct of foreign policy and war making.43 In the absence of a formal declaration of war, Congressional oversight through statutes and joint resolutions defines presidential authority to conduct war-like military activities. Under these circumstances, Congress determines the aims of the war, controls its scope and pace, and has the last word over how the forces are to be deployed. Congressional action ranges from a determination of how the war powers are to be exercised to subsequent legislation, appropriations, or a joint resolution. The problem is that presidents view this approach as unworkable.

Presidents continue to invoke the commander-in-chief clause so often as to vitiate Congressional control or even full consultation. The result has been a growing enclave of secrecy within the Executive branch. As the findings of The Tower Commission Report reveal,

Presidents become so preoccupied with the desire for secrecy, the leaks of classified information, that they tend to blame Congress disproportionately. While the Tower Commission Report maintains that Congress is no more to blame than the Executive Branch itself, the very fact that leaks could endanger a covert operation provides a convenient rationale for avoiding congressional consultation.44

The avoidance of Congressional consultation has become, for some scholars, the central lesson of the Vietnam experience. It has, more recently, become integral to the Reagan Administration as evidenced by

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