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Essential Elements of Reform of the War Powers Resolution Mark L Santa Clara Law Review Volume 29 | Number 3 Article 6 1-1-1989 Essential Elements of Reform of the War Powers Resolution Mark L. Krotoski Follow this and additional works at: http://digitalcommons.law.scu.edu/lawreview Part of the Law Commons Recommended Citation Mark L. Krotoski, Essential Elements of Reform of the War Powers Resolution, 29 Santa Clara L. Rev. 607 (1989). Available at: http://digitalcommons.law.scu.edu/lawreview/vol29/iss3/6 This Article is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion in Santa Clara Law Review by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. ARTICLE ESSENTIAL ELEMENTS OF REFORM OF THE WAR POWERS RESOLUTION Mark L. Krotoski* Table of Contents I. INTRODUCTION ..................................... 609 A. Operation of the War Powers Resolution ........... 614 B. The Chadha Decision ........................... 615 C. Other Elements Requiring Reform .................. 619 D . Overview ...................................... 620 II. THE DIVIDED WAR POWERS OF THE CONSTITUTION ..... 622 III. THE NECESSITY OF A STATUTORY INFRASTRUCTURE ..... 630 IV. ALLOWING FOR TAILORED RESPONSES .................. 634 A. Avoiding Arbitrary Elements ..................... 635 B. Reform Focuses on Process ....................... 640 O 1989 by Mark L. Krotoski * B.A., 1980, University of California, Los Angeles; J.D., 1986, Georgetown University Law Center. While the ideas contained here are solely those of the author, grateful acknowledgment is extended to the following individuals who, through their dialogue, suggestions, and assistance, were instrumental in helping to shape many of the concepts that have now taken form in this article: Congressman Daniel E. Lungren, Dean John R. Kramer, Tulane University School of Law, Victor E. Arnold-Bik, Administrative Assistant to Congressman Lungren, Dr. Stanley I. Bach, Senior Specialist in the Legislative Process, Government Division, Congressional Re- search Service, Dr. Richard S. Beth, Specialist in the Legislative Process, Government Divi- sion, Congressional Research Service, William C. Mohrman, Assistant Counsel, Office of the Legislative Counsel of the House of Representatives, as well as others. Many of the recommendations in this article are made in the context of The Hostilities Act, H.R. 3912, 100th Cong., 2d Sess., 134 CONG. REC. H250-59 (daily ed. Feb. 4, 1988), a bill which the author developed as a legislative aide for Congressman Daniel Lungren. Con- gressman Lungren is a former member of the House Committee on the Judiciary and the House Permanent Select Committee on Intelligence. Although several proposals made in this article depart from The Hostilities Act legislation, the comprehensive reform bill is the pri- mary vehicle for consideration of many of the central issues involving war powers reform. 608 SANTA CLARA LAW REVIEW [Vol. 29 V. DEFINING AND DETERMINING THE EXISTENCE OF HOSTILI- T IES ....................... ................... .... 6 4 3 A. Current Law: Triggering the Statute ............. 646 B. Defining "Hostilities"... ........................ 649 1. Other Definitions ............................ 650 2. The CongressionalPosition ................... 653 3. The Executive Branch Position ................ 655 4. Some Conclusions About These Constructions of "H ostilities" . ... ........................... 657 C. Reporting History .............................. 660 1. Reluctant Acknowledgment ................... 661 2. Reporting Pursuant to Which Subsection? ....... 664 3. Reservation of Executive Authority ............. 666 4. Some Conclusions on the Reporting History ..... 667 D. Other Hurdles in Defining Hostilities .............. 668 E. Reform Proposals .............................. 672 1. Necessity for Reform ......................... 672 2. Searchingfor an Improved Definition .......... 673 3. Congressional Determination.................. 676 a. Invocation ............................. 676 b. Potential H ostilities ..................... 679 4. Summarizing Hostilities Reform ............... 681 VI. ENHANCING THE PROCEDURAL MANNER IN WHICH CON- GRESS CONSIDERS WAR POWERS LEGISLATION THROUGH THE CONGRESSIONAL RULEMAKING AUTHORITY .......... 682 VII. PROCEDURAL ENFORCEMENT MECHANISM ................ 686 A. Background: The War Powers Resolution .......... 686 B. S. 1145, Section 807: The Grassley-Levin Model .... 690 1. Considerations Involving the Presentment Clauses 691 2. Does Section 807 Contravene the Presentment- Clauses? ................................... 692 3. The Bicameral Requirement of the Lawmaking- Process .................................... 698 4. Conclusions on the Grassley-Levin Model ....... 701 C. H.R. 3912, Section 6(a): The Lungren Hostilities Act 703 1. Operation of the Proposal .................... 703 2. D iscussion ................................. 705 VIII. THE POWER OF CONGRESS TO REASSEMBLE ITSELF TO CON- SIDER WAR POWERS LEGISLATION OR REPORTS .......... 708 A . Current Law .................................. 709 B. The CongressionalAuthority to Conditionally Adjourn 710 1. Constitutional and Statutory Authority ......... 710 2. Congressional Practice ....................... 712 a. The Trigger for Reassembly ............... 714 b. The Determination to Reassemble .......... 716 c. Notification Period ...................... 720 19891 WAR POWERS RESOLUTION d. Adjournment "Window" Periods .......... 722 e. Receiving Reports During Congressional Ad- journment ............................. 724 C. Congressional Authority for Conditional Adjournment 725 D. The Hostilities Act Proposal:H.R. 3912, Section 7 .. 725 E. Some Reassembly Conclusions .................... 728 IX. EXPEDITED PROCEDURES FOR LEGISLATIVE CONSIDERATION 728 A . Overview ...................................... 728 B. Existing Law ............... ........ ..... 732 C. Alternative 1973 Debate Proposals................ 737 D. Some Current Reform Proposals .................. 738 1. The Hostilities Act Proposal: H. R. 3912, Sections 5(a)-(k) .................................... 738 a. Threshold Trigger ...................... 738 b. Other Features of H.R. 3912 ............. 741 1) Joint or Sequential Committee Referral . 741 2) Escape Clause ...................... 742 3) Committee Discharge................. 743 4) Considerationof a Measure Passed by the Other H ouse ....................... 743 5) Floor Considerations ................ 744 6) Debate and Amendment Limitations .... 745 7) Conference ......................... 745 8) Some Conclusions on H.R. 3912 ...... 746 2. S.J. Res. 323 .............................. 747 E. The: Necessity for Effective Expedited Procedures on War Powers M easures .......................... 748 X . CONCLUSION ....................................... 750 I. INTRODUCTION The conduct of foreign affairs in the United States has been referred to as "an invitation to struggle" between the executive and legislative branches "for the privilege of directing American foreign policy." 1 This timeless observation perhaps most aptly characterizes 1. Edwin Corwin, constitutional scholar, made the following observation: Where does the Constitution vest authority to determine the course of the United States as a sovereign entity at internationallaw with respect to matters in which other similar entities may choose to take an interest?... What the Constitution does, and all that it does, is to confer on the President certain powers capable of affecting our foreign relations, and certain other powers of the same general kind on the Senate, and still other such powers on Congress; but which of these organs shall have the decisive and final voice in determining the course of the American nation is left for events to resolve. All of which amounts to saying that the Constitution, considered only for its affirmative grants of powers capable of affecting the issue, is an invitation to SANTA CLARA LAW REVIEW [Vol. 29 the debate, implementation and practice of the exclusive and shared constitutional war powers of the political branches. Few other areas rival the manifest constitutional tension continually exhibited on de- cisions concerning war. Since the founding of our nation, significant constitutional is- sues have persisted regarding the exercise of the divided war powers between the President and Congress.2 Legislative efforts since the late 1960s and early 1970s, principally through the enactment of the War Powers Resolution' by the congressional override of President Richard Nixon's veto,4 -have attempted to clarify the relative scope of struggle for the privilege of directing American foreign policy. E. CORWIN, THE PRESIDENT: OFFICE AND POWERS 1787-1957, 171 (1957) (emphasis in original). Professor Arthur Schlesinger, in describing the inherent conflict, noted that the issue was "[hiow to reconcile democratic control of the warmaking power with the imperious require- ments of foreign policy." The War Power After 200 Years: Congress and the President at a Constitutional Impasse, Hearings Before the Special Subcomm. on War Powers of the Senate Comm. on Foreign Relations, 100th Cong., 2d Sess. 40 (1988) [hereinafter 1988 Senate Hearings]. 2. In the famous Pacificus-Helvidius debate between Alexander Hamilton and James Madison, the war and foreign policy powers of the executive and legislative branches were argued. This 1793 dispute arose in the context of President George Washington's proclamation
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