The Quiet Death of the War Powers Act

When the War Powers Act was passed in 1973, the country ached from the pain of the Vietnam War, an experience no one wanted to repeat. The conventional wisdom was the Vietnam catastrophe was caused by too much executive war-making discretion. Hence, Congress tried to limit the time the president could deploy troops without explicit Congressional authorization, constraining executive authority.

The Constitution is vague about separation of authority with respect to the use of military force. Congress is entrusted with the power to declare war, but the President is the commander and chief. The courts have been reluctant to intervene in this battle of separation of powers, leaving Congress and the President to contend in the political sphere.

Typically, Republicans incline to according more discretion to the executive, whereas Democrats tilt toward Congressional supremacy. Ironically, Republicans have observed the War Power constraints, even while arguing that the President is not required to. President George W. Bush sought and received Congressional authorization for the actions in Afghanistan and Iraq. The authorization provided political cover in the conflicts. If Bush had pursued those wars without Congressional approval, the country would have been even more divided than it was.

By contrast, Democratic presidents has asserted Presidential authority to act without Congressional approval, seeking instead international sanction. President Bill Clinton did not receive approval for his actions in Bosnia and Haiti. President Barack Obama has further eroded the War Powers Act, by not even making motions to comply with its limitations in the War Power in actions against Libya. International approbation rather than Congressional authorization legitimized the intervention in the eyes of the President. This is particularly surprising given that Obama opined during the 2008 campaign that:“The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.’’

While Vice President Joe Biden was so convinced that a President does not have the authority to act unilaterally without Congressional authority that, when a senator, he boasted that would move to impeach Bush in the event Bush ordered and attack Iran.

“I want to make clear and submit to the Untied States Senate pointing out the president has no authority to unilaterally attack Iran. And I want to make it clear, I want it on the record, and I want to make it clear, if he does, as chairman of the foreign relations committee and former chair of the judiciary committee, I will move to impeach him.’’

I am sure that Biden meant that he would encourage the House to impeach since the Senate does not so.

The sorry situation is that Republicans will not bring the Libyan action to a vote for fear of looking like that they are not supporting the troops and most Democrats don’t want to impede a president of their party.

The War Powers Act has been dying almost since the moment of its passage, and perhaps is should. It has been honored more by Republicans than Democrats. However, it would have been more poetic if a Congressional-Executive conflict on war powers would have been effectively settled on something more relevant to direct US interests than Libya.

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