The War Powers Resolutions

The War Powers Resolution came into being in 1973 over the veto of President Nixon due to the troublesome Vietnamese war [1] . The United States had lost heavily in this war. The congress was very much concerned with the powers the President had of sending the armed forces into war without the approval of the congress. The main purpose of the Resolution was to lay down ground procedures that had to be followed by the President and the congress just in case the United States was to be involved in war. The President and Congress had to share decisions before sending troops into war or being involved in international hostilities. However, the Resolution gave the President enough powers to send the armed forces abroad in case of hostilities or potential hostilities with declaring war or consulting with the congress. The War resolution act, in other words was meant to stop the U.S President from declaring war without proper legislative approval.

The War Powers Resolution was enacted based on several reasons that included: the constitution gave only the congress the power to declare war. Although the President is the Commander-in chief, the modern Presidential system and his/her involvement in committing the armed troops to war without legislative consultation with the congress was upsetting the constitutional balance; the congress argued that the first decision of committing the army in hostility was the first important step that would save a country or plunge it into a national disaster. The congress wanted the President to consult extensively with it so that any decision taken would be of sound mind; the congress also realized that once armed troops had began deployment, they had little control and their only option was either impeachment or purse which could worsen a rather volatile situation. [2]

The War Powers Resolution has been seen by many as an excessive means of restricting the President’s powers. The congress, under Article I, s8 of the US constitution is given powers to declare war [3] . The enactment of the Resolution when there was still a raging debate over power distribution between the President and the congress was seen as a failure. Successive Presidents of the US after World War II have continued to use force without the approval of the congress. This trend started with Truman, with the support of the United Nation Security Council resolution, sent troops to war in Korea without the approval of the congress. The War Powers Resolution was seen as an attempt of regaining the congress’ powers in response to the Korean War which represented unrestricted excessive use of Presidential powers. The Congress is blamed for the failure of the War Powers Resolution due to its poor initial drafting that has left it toothless and its lack of will to enforce it. The courts and The President have been in the forefront to frustrate the efforts of the congress n implementing the resolution.

Section 2a of the War powers Resolution states the main objective as the President and the congress must have a collective judgment in deciding to go to war [4] . This prevents the President from unilaterally deciding to go to war without extensive consultation. Section 2a of the same constitution gives the congress the power to decide when to advice the President to declare war [5] . However, the War Powers Resolution can be to have failed since the President continues to send troops to war with the congress very little or no role. Former President Reagan and his successor are seen to have used excessive force without congress approval. Reagan invaded Grenada while Clinton ordered air strikes in Iraq without consulting the Congress. The congress has not in been interested in patching up the loopholes seen in the War Powers Resolution. Successive Presidents have continued to argue that the War Powers Resolution is unconstitutional. George Bush Senior sought congress opinion and approval to send troops to the Gulf war. The Former President still maintains that he was not bound by the War Powers Resolution but his decision to seek congress approval was a political exercise

Controversies

The War Powers Resolution has failed to achieve the initial purpose it was meant to serve [6] . The Congress is to blame for the initial poor drafting of the Resolution and thereafter the failure of the congress to enforce it. Successive US Presidents have done much to undermine the Resolution, but the congress, having powers to enforce it despite interferences have failed to do so. The drafting of the War Powers resolution experienced a tag of war between the House and the senate. There were, therefore, different versions of text full of ambiguity and editing errors. The controversies that can be drawn from the document can be outlined as follows;

The provisions of the War Powers Resolution have been controversial within itself [7] . There has been increasing doubt on whether the War Powers Resolution restores balance between the congress and the President. The initial purpose of the War Powers Resolution was for the President and the congress to consult with each other and come to a collective final decision on whether to deploy troops to hostile wars or potential hostile wars. But this has not been the case and the President makes the decisions on his/her own and then consults the congress on the decisions already made. The congress is supposed to air its views and then endorse or refuse to endorse the deployment of troops to war. However, Presidents have not actively involved the congress in consultations. The congress was not consulted when Trauma deployed troops to Korea. It is not clear in terms of consultation since the President might decide to consult a few congress people and not the whole lot.

Section 3 of the War Powers Resolution states that the President shall in every possible instance consult with the congress before sending troops to hostile regions [8] . However, the word consult has not been elaborated sufficiently and thus remain ambiguous in the face of many. The Presidents have exploited this loophole and have continued to interpret on their own way that it means notifying the congress at the very last minute about his/her decision without seeking their opinion or approval. A good example could be that of Maryguez rescue in which Gerald Ford argued that consultation had been carried. He had actually notified the congress of an impending military action shortly before it began. The ambiguity of the War Powers Resolution was thus exploited and excessive powers were used in the case of Jimmy Carter to rescue embassy hostages [9] . He argued that the War Powers resolution inclusion of ‘every possible instance’ allowed Presidents not to hold consultations over time-sensitive military operations. From these, it is very clear that congress have every reason to shoulder for the ineffective implementation of the War Powers Resolution. The first reason to blame the congress is the initial drafting of the Resolution where the congress used ambiguous language such that the Presidents have used this ambiguity to claim that last minute notifications amounts to consultations. The second reason is that the congress has failed to call upon Presidents to justify the course of their military actions. Even though Presidents have continued to use the loophole of ambiguity, the congress is in a position to call the President to account for their actions. Since the congress has not been active in this area, then they have themselves contributed to the failure/ineffectiveness of the resolution.

The War Powers Resolution requires the President to stop the use of military power after sixty days of reporting to congress10. Use of military force can be continued after this date only by the approval of congress. The sixty day clock is vital because it was foreseen that it would be put into place if the congress was divided over the matter at hand and thus ensuring that the War Powers Resolution was operational. The sixty day clock was designed to work automatically after the expiry of the sixty days period, but it has largely not been put into use. It is argued that the congress is largely responsible for the failure of the 60-day clock; it is even seen to work against the War Powers Resolution objectives [10] . The sixty day clock comes into operation after a Presidential report on the need to use military action according to section 4(1) of the War Powers11 Resolutions. However, in section 4(1) (1), the sixty day clock comes into operation when troops have been deployed in hostile areas or when hostilities are imminent. This has created a loophole and Presidents have used to their own advantage. Since the 60-day clock is not affected by all reports, Presidents have reported in consistent with The War Powers Resolution without stating which section of 4(a) they are reporting under. This in a way helps the sitting President to comply with the War Powers Resolutions while at the same time avoiding the 60-day clock coming into force. President Reagan used this loophole in bombing Libya in 1986. President Gerald Ford is the only who is said to have made a report under section 4(a) (1) during Maryguez rescue. However, it was not relevant since the report was made very late when the army had concluded their operations [11] .

The failure is also seen, since it is expected the 60- day clock to come into force automatically, congress has other few times initiated it. It is therefore unreliable since the congress cannot be depended on always to activate it. This loophole is easy to do away with since the congress can amend the War Powers Resolution to force the congress and the court to hold the President to the 60- day clock using any report presented even if he tries using any language tricks. The Congress should have amended this loophole in the drafting stages of the War Powers Resolution or when signs of evasion by Presidents started to crop up. Congress has seen the 60-day clock as an extension rather than a restriction to the President’s powers. This is in contradiction to the set up objectives of the resolution. Some people argue that since the congress has the capability to initiate war according to article I, section 8 of the constitution, then War Powers Resolution enables the President to use military action within the 60 days period without consulting the Congress [12] . This power was not available to the President there before and [13] therefore, it is seen that the Resolution is going against the fundamental objectives it was set up to serve. This is seen as if the powers of the congress have been delegated to the President. Presidents have used the sections in the War Powers Resolution that gives them power and skips those that restrict their Presidential powers. The War Powers Resolution was cited by Bill Clinton’s advisors when he decided to invade Haiti. They argued that the Resolution gave the President the powers to act unilaterally.

Lack of congressional will has been cited as the major hindrance in the implementation of the War Powers Resolution. The ineffectiveness of the Resolution has not been caused by poor drafting but also by the congress being reluctant to act decisively and close up any loopholes that exist. The congress by now could have forced the redefinition of consultation to avoid the larger ambiguity it contains at the moment. The failure of congress to act decisively is said to be contributed by the fear of members of congress being seen by the voters as if they are hindering the President in time of war. They fear voter backlash and being seen as anti-military. They are also cunning in that they would like to be identified in the time of war making but would not [14] .

Way Forward

Since its inception, The War Powers resolution has continued to elicit debate on whether it is effective, constitutional and its application [15] . It is a clear manifestation that the President and the congress have not been able to carry out any consultations or even upholding the other objectives of the resolution. Even though the congress has voiced weakly their discontent on how the Resolution continues to be flouted, they have not tried to amend it or even take to court their case or the Presidents who have gone against the objectives of the resolution. Even though the resolution was meant to restrict the powers of the President on his/her ability to send the military abroad, this has not been the case. The President has been unconstitutionally been added more powers and only uses favorable sections of the resolution for his/her own advantage. Taking a closer look at the resolution, amendments will not be enough but what is actually needed is a complete repeal or overhaul of the Resolution.

The constitution enables the President to have control over foreign affairs. Repealing The13 Resolution should therefore not do away with the consultation between the President and the congress. The President should consult with the Congress to see whether it is fit to send troops to hostilities or potential hostilities abroad. The congress is in full control over people, funds, institutions and agencies. In the quest of the President to have an efficient foreign policy, he/she requires the resources that the congress controls and thus cooperation of the highest integrity is needed [16] . The congress has the powers through legislative grounds to withdraw such support and undermine the President in his/her foreign policy adventures, amend or even reject foreign policy proposals. Foreign policy issues should be discussed consultatively and objectives coordinated transparently. Consultative discussions strike a common goal and bring forth the best course of action for a country. Such extensive consultation ensures that the President has full support of the congress and in broader terms that of the American citizens. The President will therefore be voicing his/her foreign policies with one mind and if an unfavorable eventuality is met, the President would have discussed with the congress prior to the present eventuality on how to tackle such eventuality amicably. [17]

A resolution should be put forward such that functions of different arms of government are clearly defined. The resolution should define the best course of action if the services of the US army are needed abroad and what role in such a case should the President or the congress do. The resolution should be duly signed by the President. An informal agreement is a better option but since Presidents come and go, this will only be applicable for short time and thus formal course of action should be put into place since eventualities are not planned but come at their own peril [18]

The purpose of the Resolution should be stated in a very clear manner such that there exists no ambiguity. A framework should be put into place such that the executive and legislature knows exactly what is to be done when troops are deployed into foreign countries when their aim does not include training, repair replacement or supply. The framework should be such that it comes into force once the US troops are put in a position such that they can be engaged into war by armed forces of the foreign country or they are subject to terrorist attacks. Whenever the armed forces are being trained for other purposes other than their daily operations, the President should inform the congress appropriately since this is a foreign policy issue and should comply with the provisions of the constitution.

There should be very clear laws outlining when the President has the full powers to deploy troops to foreign missions with prior consultation with the congress. This gives room to the President to be able to exercise is constitutional right as the Commander-in-Chief and at the same time take caution on military and time sensitive issues. This will enable him/her to work according to the will of the American people and at the same time not come into conflict with the constitutional right of the congress. The situational deployments which the President can do without having consultation with the congress include: necessity to keep at bay an armed attack against the US, the military, embassies, and other installations abroad; the necessity to secure the release of US hostages; comply with a U.N. Security Resolution. Since the constitution provides for the President to respond to attacks, this will not be of any controversy. The courts give the President the outright authority to protect the lives of US citizens. In any case the rescue mission is also usually short-lived and does not include a lot of military complications. The compliance with the U.N. Security Council Resolution would give the President the ability to meet the U.N regulations and be able to give humanitarian aid where it is needed urgently. This also enables the President to regulate the number of troops that can be deployed into foreign missions [19] . Since The War Powers Resolutions has largely been ineffective, people have suggested that the earlier Senate version be introduced which is outlined below.

Return to Senate Version:

Enumerating Exceptions for Emergency Use

Senator Thomas Eagleton suggested in 1977 that the resolution be reversed to the original language of the version approved by the senate. This gave the congress the ability to [20] send troops to the conflict areas abroad without necessarily declaring war to prevent attack on the US. (Its citizens or its citizens as they are being evacuated) [21] . The Resolution eliminates the prerequisite that the President has 60 to 90 days to muscle his/her troops without necessarily getting authorization from the congress. Those who oppose the idea that the President sends troops on rescue missions abroad can be abused by the President to carry out unnecessary attacks. However, such opposition can spell doom for urgent rescue missions.

Shorten or Eliminate Time Limitation

Another suggestion is to reduce the number of days in which troops can operate in 18hostilities abroad without congressional authority from sixty days to thirty days or do away with it. The current 60-90 days in which the President can muscle his troops abroad without the authorization of the President is prone mischief and irreversible actions. The original Version of the senate Resolution provided the President the right to use military in hostilities abroad not more than 30 days but they were subject to extension after receiving duly certification of necessity for safe disengagement. This however gives the military opponents advantage to acquire new strategies to win if there exists conflicts within the congress.

Replace Automatic Withdrawal Requirement

The war Powers Resolution requires withdrawal of military troops sixty days after the 19President submits section 4(a) (1) report. Congress members want a consultative effort to authorize military engagement or disengagement. The main objection is that congress dormancy can let incase of adversaries to continue during the sixty days. A joint consultation between the Executive and the legislature can be vetoed by the President and approved by a third majority in both houses, thus necessitating withdrawal of troops from such adversaries.

Cutoff of Funds

The proposal is such that, there be a possibility of withdrawal of funds just in case the War Powers Resolution is contravened [22] . These funds will only be available for troops withdrawal in such a scenario. This is possible by rejecting additional funds appropriation for the sole purpose of military action. However this is quite tricky as many members of the congress would not like to see their troops suffer because of withholding funds

Elimination of Action by Concurrent Resolution

The proposed amendments are intended to eliminate section 5(c) [23] . This section provides that troops involved in hostilities abroad without congress approval can be recalled any time if the congress so desires by concurrent resolution. Section 7 provide priority procedures for concurrent resolution

Expedited Procedures

This calls for a joint resolution in The War powers Of Resolution [24] . The congress is given powers to override the decisions that have been taken by the President. The joint resolution could be calling for military deployment or its withdrawal [25]

United Nations Actions

The United Nations activities have intensified since the end of cold war [26] . The proposal contemplates on whether the US has any obligation to avail troops to the UN such as peace keeping missions. There are suggestions on amendments to be made so that there are no conflicts between this resolution and that of the UN

Judicial Review

This gives any member of senate to take a President to court in case of contravention of the resolution [27] . This might be quite difficult as seen by the recent ways in which the federal courts have dealt with such cases. They have rejected lawsuits presented to them on the grounds that the lacked standing sue.

Conclusion

The original main objective of the War Powers Resolution was to give the congress the power to exercise its constitutional right of initializing war. The congress decided to bring into force this resolution due to the heavy losses the US suffered in the Vietnamese War and the lack of the President to consult with the congress. Those who came up with the idea of the Resolution had in mind to define the responsibility of the executive and the legislature to avoid the frequent conflicts that were coming up. But it is seen that the Resolution has created more conflicts rather than cooperation. This has been due to the flaws that exist within the Resolution. The Resolution in essence denies the President the right to military powers that he/she has traditionally enjoyed such as a decision to deploy troops in a rescue mission. The 60-day clock implies that the armed forces are supposed to withdraw automatically. This is a huge burden on the troops and the President’s flexibility is inhibited. The failure of congress to act or the congress being able to force the President to stop prematurely his/her activities seem to contradict the constitution.

After many years that the Resolution has been in force, it has not achieved its objectives. The congress thus needs to come up with a framework that will necessitate the cooperation between it and the executive. Since the US is a military power house, its military resources will continue to be needed abroad. For the US capability to be recognized internationally, it needs to reorganize itself. The Resolution issue is a small thing to deal with and the US should use the democratic right to deal with it.