Thursday, January 11, 2007

Between the Arrows and the Olive Branch: The Tortured Path of the War Powers Resolution in the Reagan Years (1981-1987)

In 1987, COHA Senior Research Fellow Terrence E. Paupp authored a law journal article examining the War Powers Resolution, passed by the U.S. Congress in 1972. Paupp's article, "Between the Arrows and the Olive Branch: The Tortured Path of the War Powers Resolution in the Reagan Years (1981-1987)," was published in the Journal of Contemporary Legal Issues, Volume 1, Number 1, 1987, University of San Diego School of Law. The article contains two major sections, which examine, respectively, the Constitutional issues and several case studies.

Now, at the begining of 2007, Paupp's article appears to be even more relevant than when it was first published due to President Bush's proposal to "surge" 20,000 more American troops into the war in Iraq and continue with an armed presence in the country for at least the next two years. Paupp argues that such a result need not be the case if Congress has the courage to reassert its Constitutional rights with regard to its power to have a definitive say on the nation's waging of war. The War Powers Resolution, according to Paupp, gives Congress the ultimate authority in such matters.

The Constitution addresses the question of where the war power actually resides by advocating a balance between the Legislative and the Executive powers. Paupp's arguments is that just because President Bush is "Commander in Chief," this does not dismiss his Constitutional obligation to consult with Congress on the introduction and funding of U.S Armed Forces. Further, Congress retains the "power of the purse" to cut off funds when the Executive oversteps its bounds.

On a recent airing of the NBC' program, "Meet the Press," Senator Joe Biden (D - DE), the new chairman of the Senate Foreign Relation Committee, asserted that there was no way for Congress to force President Bush to withdraw American troops from Iraq. This paper contends that Senator Biden is wrong in maintaining that President Bush can keep them there for a specified time period. The the contrary, Congress is free to resist this (In 1972, it passed the War Powers Resolution over President Nixon's veto).

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 war. The War Powers Resolution states in its introduction, Section 2(a), its intended goals:

"It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of the United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations."

The Resolution's emphasis on "collective judgment" seeks to restore cooperation between the Executive and Legislative branches. In the Bush presidency there has been no such consultation with Congress. In its place, Bush and his legal team have come up with the theory of the "unitary Executive"---a president that can do as he will in matters of war and peace because he has the title of "Commander-in-Chief." Contrary to his ability to use this presidential proclamation in a plenary manner, Article I, Section 8, Clause 11 of the Constitution is further defined and explicated by the War Powers Resolution which leaves ultimate authority on the engagement of American troops to the Congress.

The War Powers Act, as spelled out in Section 4, requires the president to send a report within 48 hours when, without a declaration of war, he introduces United States forces into combat or some other dangerous situation. In Section 4 (3) the Act requires that he consult with Congress when he seeks to deploy troops "in numbers which substantially enlarge United States Forces equipped for combat already located in a foreign nation."

The reporting requirement is critical. Within 60-days after the report is submitted or required to be submitted (whichever comes first), Section 5 of the War Powers Act directs that "the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted)." Unless Congress has declared war or enacted a specific authorization to the use of the Armed Forces, or extended the 60- day period to not more than 90 days upon certification by the President, "such forces shall be removed by the President if the Congress so directs by concurrent resolution."

The result is this, Senator Biden is wrong in rendering minimalist analysis of Congress' authority when it comes to unlimited presidential prerogatives and when it comes to the use of force. Congress has the power to stop Bush's enlargement of the presence of U.S. Armed Forces in Iraq and---even more importantly--- Congress alone retains the explicit authority to withdraw ALL American forces by concurrent resolution.

Terrence E. Paupp is the author of the just-published book, Exodus From Empire: The Fall of America's Empire and the Rise of the Global Community (Pluto Press, 2007). [NOTE: It is available through --- or through]. COHA Senior Research Fellow Terrence Paupp has taught philosophy, international law, and political science at Southwestern College and National University. He is the author of a noteworthy earlier work, Achieving Inclusionary Governance: Advancing Peace and Development in First and Thirld World Nations (Transnational Publishers, 2000). From 2001-2005, he served as National Chancellor of the United States for the International Association of Educators for the World Peace (IAEWP). Currently, he divides his time between his responsabilities as a COHA Senior Reseacrh Fellow and as vice-president of the Association of World Citizens (AWC).

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