Could Congress End the War in Iraq by Invoking the War Powers Resolution of 1973?

Why should we tolerate the abiding ambiguity over where ultimate power over war and peace resides, leaving these issues to continue to fester and vex future generations?
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The constitutional mathematics of the recent showdown between President Bush and the Democratic Congress over the War in Iraq were straightforward. It did not matter that over 50% of the Senate and 50% of the House were willing to place some termination point on the war, because the president could not be moved from his 100% resolve to veto anything other than a "clean" bill extending funding, and the 2/3rds majority in each chamber required for a congressional override of a presidential veto did not exist. The mathematics under the War Powers Resolution of 1973, a federal law passed against the backdrop of Vietnam, are arguably different. The War Powers Resolution was itself the product of a congressional override. President Nixon vetoed the bill, but 2/3rds of the Congress overrode that veto, ostensibly making the Resolution part of the law of the land. Two sections of the War Powers Resolution deal with ending wars, and neither is subject to a presidential veto.

Section 4 of the Resolution imposes on the president a number of "reporting" requirements, including a catch-all provision in section 4(c) that requires a president to report to Congress at least every six months on the progress of ongoing hostilities. Section 5(b) of the Resolution in turn provides an "automatic" termination of wars within 60-90 days of the date of such a report, or the date on which such a report should have been submitted. The automatic withdrawal provision, however, appears to apply only to wars initiated by presidents without a declaration of war or specific statutory authorization. Congress gave President Bush the go signal to prosecute the war in Iraq in October 2002. So nix this idea.

Section 5(c) of the Resolution permits Congress to end a war by passing a concurrent resolution to withdraw our troops from hostilities. A "concurrent resolution" is not a "bill" presented to the president for signature or veto, and so President Bush could not counter a Section 5(c) resolution by invoking his veto power. Section 5(c), however, is also ostensibly limited to presidential self-starters, and does not apply to wars undertaken with congressional approval. Even if Section 5(c) were otherwise applicable, there is an open constitutional question as to whether such a "legislative veto" by Congress is itself constitutional. In a landmark 1983 decision entitled INS v. Chada, the Supreme Court struck down "one house vetoes," mechanisms that allowed either house of Congress, acting alone, to void an administrative regulation or determination (in that case, involving immigration and deportation). Among the reasons invoked by the Court in striking down the legislative veto was the fact that the device operated as an end-run around the "Presentment Clause" of the Constitution, which requires that bills be presented to the president for approval or veto. So nix this bright one too.

Thus the answer to the question posed at the start of this posting is probably "no." But I made you look. There is some ambiguity in the War Powers Resolution that might leave room for alternative interpretations of the sections above. One might argue, for example, that the termination provisions can be invoked to end any hostilities engaged in by the United States short of those authorized by a formal declaration of war. But the most plausible interpretation of the War Powers Resolution as currently written is that once Congress joins with a president to start a war, presidents cannot be stopped from continuing them unless Congress simply lets the war funding run out -- a solution that is never particularly palatable to anyone -- or passes a law ending the war by a 2/3ds override of a presidential veto.

Given this reality, should or could the War Powers Resolution be amended?

Should Congress have the ongoing power to end wars, whether or not a president agrees? Should the norm in our society be that we expect wars to be started with the consent of both the legislative and executive branch, and to continue with the consent of both, so that if either branch at some point decides to pull out, we pull out?

Whether this rule would itself be constitutional -- whether Congress (and presumably some future president other than President Bush) could agree to amend the War Powers Resolution to so strengthen the power of Congress -- is in doubt. Some would argue that there is a ratchet-wrench quality to the Commander-in-Chief Clause. While the framers gave Congress the power to declare war, and the power to enact laws regulating the armed forces, only the president commands, and inherent in the notion of "command" is that once hostilities are commenced, only the Commander has authority to decide when they end. Others might argue, however, that the Constitution is not so clear on this. The framers thought they had achieved a way to check the dog of war by placing the war power with the representatives of the people. Under this view, both the starting and stopping of wars are subject to the plenary authority of the democracy, as expressed most directly by a majority of both houses of Congress.

Our Supreme Court has only barely scratched the surface of these questions, in part because the questions have only rarely been presented to the Court. Indeed, there is a view that such questions are inherently "political," and not appropriately subject to judicial resolution. The Court did decide that President Lincoln had the constitutional power to blockade southern ports before a declaration of war by Congress in the early days of the Civil War, and that President Truman did not have the power to seize steel mills in Ohio as an adjunct to his powers to fight a war in Korea.

More broadly, to the extent that these are fundamental questions about the proper allocation of decisions over war and peace in our constitutional democracy, they are surely worthy of our collective national focus. Vietnam and Iraq now punctuate the frustrating experiences of two generations. Why should we tolerate this abiding ambiguity over where ultimate power over war and peace resides, leaving these issues to continue to fester and vex future generations? These are questions of great moment. Perhaps when this war is finally over, we should seize the moment, and work earnestly to resolve them.

Rod Smolla is the Dean of the University of Richmond School of Law, and on July 1 will become Dean of the Washington and Lee School of Law.

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