Loyola of Los Angeles Law Review Volume 17 Number 3 Symposium: The War Powers Article 1 Resolution 6-1-1984 War Powers Resolution: Its Past Record and Future Promise Clement J. Zablocki Follow this and additional works at: https://digitalcommons.lmu.edu/llr Part of the Law Commons Recommended Citation Clement J. Zablocki, War Powers Resolution: Its Past Record and Future Promise, 17 Loy. L.A. L. Rev. 579 (1984). Available at: https://digitalcommons.lmu.edu/llr/vol17/iss3/1 This Symposium is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact [email protected]. WAR POWERS RESOLUTION: ITS PAST RECORD AND FUTURE PROMISE by Representative Clement J Zablocki Chairman, House Com- mittee on ForeignAffairs* I. INTRODUCTION The Loyola of Los Angeles Law Review is to be commended for sponsoring this symposium on the War Powers Resolution (WPR). November 7, 1983 marked the tenth anniversary of the enactment of the Resolution over the President's veto. The continuing significance of the Resolution was demonstrated by the fact that only six days before that anniversary, the House passed, by a vote of 403-23, a joint resolution invoking the provisions of the War Powers Resolution with respect to United States military action in Grenada.' The sequence of events leading to its formulation, and the political dynamics surrounding its passage have been adequately dealt with elsewhere.2 Accordingly, the main focus of this article concerns the im- plemeiitation of the Resolution during its ten year history by the Exec- utive and the Congress. This discussion of WPR implementation is divided between execu- tive-legislative implementation under the Ford and Carter Administra- tions, and implementation under the Reagan Administration. The principal reason for this division is that the clearest applications of the Resolution, and the clearest challenges to its effectiveness, have oc- curred as a result of decisions by the Reagan Administration to commit troops into Lebanon and Grenada. The Ford and Carter Administra- tions did not engage in such clear-cut military actions on a major scale. * Ph. B. 1936, Marquette University; Wisconsin State Senator 1942-48; United States Representative 1948-83. Co-author of the War Powers Resolution, the Honorable Clement J. Zablocki passed away on December 3, 1983, after having approved this article for publica- tion by the Loyola of Los Angeles Law Review. 1. H.R.J. Res. 402, 98th Cong., Ist Sess., 129 CONG. REc. H8933-34 (daily ed. Nov. 1, 1983). 2. See STAFF OF HOUSE COMM. ON FOREIGN AFFAIRS, 97TH CONG., 2D SESS., REPORT ON THE WAR POWERS RESOLUTION: A SPECIAL STUDY OF THE COMMITTEE ON FOREIGN AFFAIRS, 103-10 (Comm. Print 1982) [hereinafter cited as SULLIVAN STUDY]. LOYOL4 OF LOS ANGELES LAW REVIEW [Vol. 17 II. FORD AND CARTER IMPLEMENTATION OF THE WAR POWERS RESOLUTION The political embarrassment of a veto override and the resistance to share war powers responsibilities that had been virtually conceded to Presidents by Congress after World War II, made the executive branch slow to establish procedures for WPR implementation in the first year after passage. In fact, it was not until October 1974 that the State De- partment established procedures for compliance. Furthermore, those procedures were established only after a letter to the Secretary of State from the Chairmen of the House Foreign Affairs Committee and the Senate Foreign Relations Committee in July 1974, inquiring as to "what arrangements have been made within the Executive branch to ensure full and timely compliance."3 Executive branch implementation was only marginally better dur- ing the series of tests of compliance during the 1974-1980 period.4 A short discussion of these tests follows. A. DanangSealft President Ford's use of United States military aircraft to evacuate American citizens and Vietnamese refugees during the collapse of South Vietnam in the spring of 1975 was the first test of WPR compli- ance. This test concerned two sections of the War Powers Resolution. First, the sealift tested section 3 which requires the President to consult with Congress in every possible instance before introducing United States Armed Forces into hostilities or into imminent involvement in 3. Letter from Hon. Thomas E. Morgan, Chairman, House Committee on Foreign Af- fairs and Senator J.W. Fulbright, Chairman, Senate Committee on Foreign Relations, to Henry A. Kissinger, Secretary of State (July 16, 1974), reprintedin STAFF OF HOUSE Sun- COMM. ON INT'L SECURITY & SCIENTIFIC AFFAIRS OF THE HOUSE COMM. ON FOREIGN AFFAIRS, 98TH CONG., 1ST SEsS., THE WAR POWERS RESOLUTION: RELEVANT DocU- MENTS, CORRESPONDENCE, REPORTS 37 (Comm. Print 1983) [hereinafter cited as RELEVANT DOCUMENTS]. 4. For other incidents which raised possible questions among members of Congress concerning WPR applicability, see infra notes 5-20 and accompanying text. These incidents include: the unarmed military evacuation of Americans from Cyprus in July 1974, food and military equipmenf resupply of Cambodia by unarmed military aircraft in the summer of 1974, unarmed reconnaissance fights over Cambodia in late 1974 and early 1975, unarmed military evacuation of Americans from Lebanon in June 1976, the deployment of 300 United States troops under the United Nations flag into the demilitarized zone in Korea after the North Korean attack on United States and South Korean soldiers attempting to cut down a tree in the zone in August 1976, the airlift of military equipment to Zaire in May 1978, and the participation of United States troops in joint military maneuvers with Hondu- ras throughout 1982 and 1983. See also SULLIVAN STUDY, supra note 2, at 173-77, 221-37. 1984] SYMPOSIUM hostilities.5 Second, Ford's act concerned section 4 which requires the President to report to Congress whenever United States Armed Forces are introduced (1) into hostilities or into situations where imminent in- volvement in hostilities is clearly indicated by the circumstances; (2) into the territory, airspace or waters of a foreign nation while equipped for combat (with certain exceptions); and (3) in numbers which substantially enlarge United States armed forces equipped for combat already located in a foreign nation.6 The reporting requirement of section 4 is the essential element of the War Powers Resolution. If the President files a report under the first circumstance listed above (section 4(a)(1)), United States troops must be removed within sixty days unless Congress, under section 5(b) of the Resolution, extends their presence by authorization or declara- tion of war. Through the reporting requirement, Congress thus reserves for itself the exercise of the mandate provided exclusively to Congress by the Constitution on the final decision on committing troops into war. As such, the Danang sealift represented the first of several initial tests of executive branch compliancewith the War Powers Resolution. More importantly, it provided an indication of whether the executive branch would acknowledge the constitutional validity of the Resolu- tion or rely on claims of executive power of the Commander-in-Chief to justify its actions. Post World War II Presidents have used the phrase "Commander- in-Chief' to justify waging wars without congressional approval. Its usage has also been part of a myth about the constitutional importance of the Commander-in-Chief. The notion that the President can decide whether or not to seek congressional approval for committing troops is not evident in the Con- stitution or in the statements of the founding fathers. The fact that executive branch lawyers say there is such evidence does not give it constitutional foundation. While some of the Founding Fathers were concerned about this issue, James Madison commented that the executive has no right, in any case, to decide whether there is cause for declaring war.7 Madison added that the power of judging the causes of war rests exclusively with 5. War Powers Resolution of 1973, § 3, 50 U.S.C. § 1542 (1976). 6. Id. § 4, 50 U.S.C. § 1543(a). 7. See, e.g., THE FEDERALIST No. 41, 48 (J. Madison) (J. Cooke ed. 1961). In Federal- ist No. 41, id. at 276, Madison implicitly refers to the Federalist Papers of Hamilton in which Hamilton unequivocally states that the legislative branch, not the executive branch, has the LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 17 the legislative branch. In short, there is nothing vague or amorphous about who receives the vast bulk of war powers under the Constitution. It is Congress. Executive branch compliance concerning the Danang sealift was disappointing at best. Rather than seeking Congress' views before- hand, legislative "consultation" involved reporting the President's deci- sions to various members of Congress, thereby constituting nothing more than after-the-fact information. The executive branch's report to Congress cited the President's authority as Commander-in-Chief as the legal authority under which the sealift was undertaken and the report failed to specifically cite any of the three subsections of section 4 as the basis for the report.8 This method of compliance, which avoided the triggering of section 5(b), set in motion a pattern of half-hearted execu- tive branch compliance with the War Powers Resolution which has persisted to this day. This attitude has also frustrated the development of a collective judgment by Congress and the President on the decision to commit troops to hostilities or to imminent involvement in hostilities that motivated the authors of the Resolution, and is reflected in section 2(a) of the Resolution. B. Cambodian Evacuation The evacuation of Americans and Cambodians from Phnom Penh in April 1975 by United States military aircraft also involved deficient compliance with sections 3 and 4.