The Failure of The War Powers Resolution - Essay Example

The failure of The War Powers Resolution The War Powers Resolution was a federal law that was intended to check on the presidential powers to place the US into a war or armed conflict, prior to the achievement of the approval from the congress (Barbara, 1994 p26). The congress required that president should seek a legislative approval before he commits the army to a war with another country. Provided for as a joint resolution, the law required that the president is restricted from sending the army to a war mission abroad, unless such a mission is first approved by the congress. The joint resolution only allowed the president to take such an action, on the event that there is a war emergency that the army should respond to. Other instances include, should the US, its territories or its interests be attacked (David & Larry, 1996 p22). As the provision of the law, the president should notify the congress once his intention to place the armed forces into war, within a span of 48 hours. More to this provision is the fact that the armed forces are prohibited from remaining in the war zone abroad for a period exceeding two months. After the expiry of the first two months, the army is granted 30 more days within which all its soldiers and operations should be withdrawn for the territory (Gareth, 2007 p19). Since this joint resolution was passed by majority two thirds of the congress, then the president has no veto powers over the legislation and thus has just to agree with the terms as provided. However, some presidents of the US have superseded these provisions, and engaged in war, without strictly adhering to the legislation, under some circumstances. Notable are the examples of presidents Bill Clinton and Obama, whereby in 1999, Clinton authorized the bombing of Kosovo, in total disregard of these legislative provisions. In 2011, president Obama went ahead and approved to enforce a no-fly zone policy over Libya, as was required by the UN (Dinan, 2006 W6). While President Obama held the view that the legislation did not provide restrictions for such actions, many of the US presidents have also held the same viewpoint, arguing that the legislation is against the US constitution. As per the US constitution, the congress is mandated with the powers of declaring war, supporting the armed forces and also the budget for such wars, and making all the necessary legislations that oversees the execution of such wars. The institution of presidency on the other hand is mandated to lead the armed forces and repel any attack that may face the US (Glen, 2011 p28). As a privilege added to this institution, the president can agree to or reject a declaration of war issued by the congress, as he deems necessary. Therefore, there has been a struggle between the congress and the US presidents on the constitutionality of such provisions, as provided for by The War Powers Resolution. This has seen the provisions undermined by the presidents, through taking such war actions without consulting the congress. Thus, a question arises as to which institution, among the congress, the Supreme Court and the president is responsible for this failure. The failure of The War Powers Resolution can be traced to the side of congress. These failures are both in the way the congress enacted the legislation and in its failure to enforce the enacted law subsequently, where it would be necessary to contain the actions of the presidents (Rumsfeld, 2011 p14). Though some US presidents have totally overruled the provisions of the legislation, there is a possibility that the congress could nave contained such undermining, through their legislative and consequent enforcement powers. Thus, even though the institution of presidency can be blamed for such failures through undermining the requisite laws, the congress bears the greater burden of failure. The major failure of the War Powers Resolution, as a legislation is in its objective, under section 2a, where the law meant to seek a collective judgment in matters pertaining to wars abroad, so that both the president and the congress could contribute to the decision to go into a war. With a joint contribution to such a decision, then there would not be any subsequent blame laid on any single institution or individual, based on the outcomes of such wars (Louis, 2004 p148). The objective sought to contain the unilateral powers held by the presidents over the army and decision making in wars, so that failures in such decision-making can be minimized. Therefore, while the objective of the provision was noble, there has been a failure in adhering to it. Congress carries the blame in that; it has always failed to change the decision to go into war as made by the president, allowing the president to act unilaterally to declare war, without its approval (Richard, 2003 p18). Most of the presidents have sought the weaknesses and the loopholes left by the legislation and used them as a basis to violate the provisions of the legislation. However, even though the congress has the ability to seal such loopholes and eliminate all the weaknesses associated with the legislation, it has failed to do so. Since the violations can be traced back to decades ago, the congress would have taken the initiative to amend the legislations and effectively block all the loopholes that the presidents have always taken advantage of (Dinan, 2006 W6). A good example of such loopholes that has been capitalized on by the presidents is the declaration of a no-fly zone endorsed by the US over Libya, in 2011. President Obama went ahead and endorsed the UN declaration over Libya, without giving a notice to the congress on the action or seeking their approval on the endorsement. The president argued that the provisions of The War Powers Resolution does not provide for or restrict such actions. Therefore, if the congress had looked into the provisions and sealed such a loophole, then the president would have no basis of taking such a unilateral action, violating the objective and purpose of the legislation. Thus, this clearly indicates the failure of the congress to use its powers to ensure that the legislation’s spirit and letter are followed. Lack of congressional will to support the legislation is the major reason for the failure of the legislation (Grimmett, 2009-6 p11). Thus, the congressional contribution to the failure of the legislation starts right from the drafting of the law. The greatest error occurred in the use of ambiguous language in the law, an element that has contributed to the law being compromised. The provision of section 3 is such one example of ambiguity within the legislation in that, while it requires that the president shall consult with the congress before placing the armed forces into a war abroad, there is no precise definition of the term consult, leaving it ambiguous (John, 1995 p236). Therefore, the presidents have been left with the sole responsibility of elaborating what consult means, thus taking the advantage of such an opportunity to interpret it in a way that mostly suits their intentions. The presidents have always interpreted the term to mean a mere notification, rather than the process of active involvement of both parties in arriving at a decision. By taking the advantage of this provision, the presidents have engaged in a last minute and abrupt notification of their intended actions, just moments before such actions commences (Jennifer, 2011 A2). Here, the congress has played a big role in the failure of the legislation, by not defining, elaborating and interpreting the term, and indicating what it should mean, in the context of the legislation and its provisions, thus effectively hinder the violation of its intention. Thus, there are ways in which the congress has failed, regarding the consultation provision. The congress has failed to address the ambiguous mistake made during the drafting of the law. Additionally, it has failed to require that such presidents who violate such requirements of the provision be held accountable for their actions (Michael, 1991 p372). Since the congress is mandated and vested with the powers to call such presidents to account for their violations, its evasion of such responsibility becomes a great part of its failure to ensure that the legislation is adhered to. Another part of ambiguity can be traced in the relationship between the provisions of section 2c of the legislation and that of section 4. While section 2c provides the president with the powers to authorize military action, in order to repel an enemy attack on the US, its possessions, territory or military, section 4 contradicts this. Section 4 introduces a broad perspective of the range of situations and circumstances under which the president can commit the armed forces (Gareth, 2007 p8). In referring to commitment of US troops to hostilities abroad, section 4 through implied terms allows the president to place the armed forces into wars abroad, as long as a report is given to the congress on such events. Thus, the ambiguity has provided the presidents an opportunity to apply section 4 and ignore section 2c, since section 4 grants them a wide range of circumstances through which they can exercise their powers. Thus, the failure of the congress to address such ambiguity contributes to the ultimate failure of the War Powers Resolution. The 60-day clock is yet another area where the failure of the congress can be traced. This is a vital part of the provisions of the legislations, that requires that the president stops the use of armed forces abroad, after the expiry of 60 days and have them revert back home, unless the congress agrees to the contrary, to extend the duration of the army in war abroad (David & Larry, 1996 p416). However, this requirement has always been violated by the presidents, seeing the extension of the troops in wars abroad beyond this period, even without the approval of the congress. The provision is supposed to occur automatically, without any necessity for any legislation to this effect. The provision of the presidential report regarding the wars abroad triggers the 60-day clock provision to come into effect. Nevertheless, there is some ambiguity is the provisions guiding this rule, that the presidents have always exploited. While section 4 (1) requires the provision of the report under the wider circumstances, section 4(a) (1) requires the provision of the report, where troops are introduced to hostilities. Thus, the presidents have always opted to interpret the law in line with section 4(a) (1), and thus fail to provide the report under the wider circumstance. This has seen the extension of the period of stay of the troops in wars abroad, even though they ought o have terminated their operations and reverted back home by the end of the 60-day period. The failure of the congress to address the contrast in these sections, has contributed to the ultimate failure of The War Powers Resolution (Kinkopf, 2000 p2). Nevertheless, though the congress is to blame for the great part of the failure, the other two institutions, the president and the Supreme Court, have also played a role in the failure of The War Powers Resolution. Presidents have caused a failure to this law by deliberately seeking loopholes and capitalizing on them to suit their interests, regarding wars abroad (John, 2002 p1639). Additionally, presidents have always questioned the suitability of the legislation, with an allegation that it seeks to limit their powers. They have thus sought to question the constitutionality of the legislation, thus deliberately seeking ways to override its provisions (Glen, 2011 p33). The argument of the unconstitutionality of the legislation is the fact that the president has the right to veto the legislations done by the congress, including the War Powers Resolution. The courts on the other hand have contributed to the failure of this legislation. Having members of the congress present the cases regarding the law to the courts and the courts failing to address such issues, arguably since they do not have a jurisdiction over such a case, the courts have contributed to the failure. Citing the political questions doctrine, the courts have evaded their responsibility, alleging that the congress should be the one to decide on political matters (Young, 2003p14). Thus, the failure of The War Powers Resolution can be traced to all of the institutions in the US government, but majorly, placing the higher blame on the congress. Works Cited Barbara, H. (1994). Less than Meets the Eye: Foreign Policy Making and the Myth of the Assertive Congress. University Of Chicago Press. 20- 259. David, G., and Larry G. (1996). The Constitution and the Conduct of American Foreign Policy. University Press Of Kansas.12-416. Dinan, S. (Saturday, June 4, 2011). Bipartisan Congress rebuffs Obama on Libya mission. The Washington Times. W6. Gareth, J. (2007). The War Powers Resolution: A Congressional Failure to Act. 7-20. Glen, G (2011). Congress vs. the president on war powers. Salon. 20-35. Grimmett, Z. (2006). CRS Report for Congress: War Powers Resolution: Presidential Compliance. Federation of American Scientists. 9-30. Jennifer, S. (June 3, 2011). ‘House Rebukes Obama for Continuing Libyan Mission Without Its Consent’. The New York Times. A2. John, E. (1995). War and Responsibility. Princeton University Press. 1-254. John, Y. (2002). War and the constitutional text. University of Chicago law review. 1639-1684. Kinkopf, N. (2000). The Congress as Surge Protector. American Constitution Society for Law and Policy. p2. Louis, F. (2004). Presidential War Power. University Press of Kansas. 45-389. Michael, G. (1991). Constitutional Diplomacy. Princeton University Press. 1-384. Richard, G. (2003). War Powers Resolution: Presidential Compliance. Issue Brief for Congress. 1-19. Rumsfeld, D. (2011). Known and Unknown: A Memoir. Penguin. 11-20. Young, L. (2003). Amicus Curiae Brief in Support of Plaintiff's Appeal. United States Judiciary. p14. Read More