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Rethinking War Powers: By Law or by “Thaumaturgic Invocation”?

Published online by Cambridge University Press:  27 February 2017

Thomas M. Franck
Thomas M. Franck*
Affiliation:
New York University
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Extract

In matters of foreign relations and national security, Presidents believe they know best, because they, alone, possess the information, advice and range of means to meet an imminent threat. It follows that when the judiciary or the Congress seeks to second-guess the exercise of what Chief Executives now are pleased to call the “foreign relations and national security power,” they are regarded as gratuitous intermeddlers. This is nowhere more tenaciously asserted by Presidents than in matters pertaining to the deployment of U.S. armed forces for combat abroad.

Type
Distribution of Constitutional Authority
Information
American Journal of International Law , Volume 83 , Issue 4 , October 1989 , pp. 766 - 777
Copyright
Copyright © American Society of International Law 1989

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References

1 United States v. American Tel. & Tel. Co., 567 F.2d 121, 128 (D.C. Cir. 1977).

2 United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). See also Johnson v. Eisentrager, 339 U.S. 763, 785–86, 788–89 (1950).

3 Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948).

4 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., concurring).

5 Zweibon v. Mitchell, 516 F.2d 594, 604–05 (1975).

6 Algonquin SNG, Inc. v. Federal Energy Admin., 518 F.2d 1051, 1062 (D.C. Cir. 1975).

7 Although the Vietnam “war” was not declared by Congress, it received “steady Congressional support.” Congress would have to be “opposed to the continuance of hostilities.” Massachusetts v. Laird, 451 F.2d 26, 34 (1st Cir. 1971). See also Mitchell v. Laird, 488 F.2d 611, 616 (D.C. Cir. 1973).

8 Massachusetts v. Laird, 451 F.2d at 34.

9 Judge Wyzanski, writing for the court, wrote that once hostilities are fully under way, the congressional role changes: even if Congress were to end its support of the war, the President’s duties would

not go beyond trying, in good faith and to the best of his ability, to bring the war to an end as promptly as was consistent with the safety of those fighting and with a profound concern for the durable interests of the nation—its defense, its honor, its morality.

Mitchell v. Laird, 488 F.2d at 616. That, obviously, could take a long time.

10 Pub. L. No. 93-148, 87 Stat. 555 (1973) (50 U.S.C. §§1541–1548 (1982)).

11 Subcomm. on Arms Control, International Security and Science of the House Comm. on Foreign Affairs, 100th Cong., 2D Sess., The War Powers Resolution, Relevant Documents, Correspondence, Reports (Comm. Print 1988) [hereinafter War Powers 1988].

12 See Franck, After the Fall: The New Procedural Framework for Congressional Control over the War Power, 71 AJIL 605 (1977).

13 Section 4(a)(2) was twice cited specifically by President Ford: in connection with the Danang evacuation operation in a report of Apr. 4, 1975, and the Cambodian evacuation in a message of Apr. 12, 1975. His report of Apr. 30, 1975, on the Vietnam evacuation noted §4 in general. Only in the case of the Mayaguez rescue, in a report of May 15, 1975, did President Ford specifically “take note” of §4(a)(1). None of the 15 other reports specifically acknowledged §4(a)(I). See Collier, The War Powers Resolution: Fifteen Years of Experience, in War Powers: Origins, Purposes and Applications: Hearings Before the Subcomm. on Arms Control, International Security and Science of the House Comm. on Foreign Affairs, 100th Cong., 2d Sess. 240, 255–57 (1988).

14 Lowry v. Reagan, 676 F.Supp. 333 (D.D.C. 1987), off’d per curiam, No. 87-5426 (D.C. Cir. Oct. 17, 1988).

15 INS v. Chadha, 462 U.S. 911 (1983).

16 Not so long ago, it was perfectly proper to insist, as a matter of constitutional doctrine, that no war-making power could ever be delegated by Congress, for that “improperly commingled the powers of the two branches.” See Sparkman, Changing Concepts of Control of the Armed Forces, 61 Dick. L. Rev. 335, 336 (1957).

17 The origins of this congressional abdication extend into the early history of the Constitution. For the more egregious 19th-century examples, see H. Cox, War, Foreign Affairs and Constitutional Power 307–31 (1984).

18 Youngstown, 343 U.S. at 637 (Jackson, J., concurring).

19 Id.

20 Id. at 635.

21 Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221 (1986). The Court said that “under the Constitution, one of the Judiciary’s characteristic roles is to interpret statutes and we cannot shirk this responsibility merely because our decision may have significant political overtones.” Id. at 230. That case involved a conflict between a statute and a presidential foreign relations initiative. The Court specifically sought to “recognize the premier role which both Congress and the Executive play in this field.” Id. But, obviously, if Congress’s role is to be recognized by the judiciary, it must speak in terms the judiciary can understand and utilize.

22 369 U.S. 186 (1962).

23 Id. at 211.

24 Orlando v. Laird, 443 F.2d 1039, 1040 (2d Cir. 1971).

25 War Powers, Conference Report, Joint Explanatory Statement of the Committee of Conference, in War Powers 1988, supra note 11, at 7, 14.

26 See H.J. Res. 462, 100th Cong., 2d Sess (1988) (introduced by Rep. Peter A. DeFazio); see also H.J. Res. 157, 101st Cong., 1st Sess. (1989).

27 Durand v. Hollins, 8 Fed. Cas. 111 (C.C.S.D.N.Y. 1860) (No. 4,186).

28 6 U.S. (2 Cranch) 170 (1804).

29 War Powers Act, S. 440, 93d Cong., 1st Sess. (1973).

30 History is a reliable guide to the penchant of the President for creating the very situation that he then asserts an “inherent” right to respond to with armed force. See J. Javits, Who Makes War: The President versus Congress 169–205 (1973); Staff of Senate Comm. on Foreign Relations, 91st Cong., 2d Sess., Documents Relating to the War Power of Congress, the President’s Authority as Commander-in-Chief, and the War in Indochina 322, 324-25 (Comm. Print 1970).

31 Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair, 97 Yale L.J. 1255(1988).

32 See Report dated May 15, 1975, from former President Gerald R. Ford, to Hon. Carl Albert, former Speaker of the House of Representatives, in compliance with section 4(a)(1) of the War Powers Resolution, relative to the Mayaguez incident, in War Powers 1988, supra note 11, at 45. For the view that this action was illegal, see Franck, supra note 12.

38 Lowry v. Reagan, 676 F.Supp. 333 (D.D.C. 1987), off’d per curiam, No. 87-5426 (D.C. Cir. Oct. 17, 1988).

34 376 U.S. 398 (1964).

35 22 U.S.C. §2370(e)(2) (1982).

36 243 F.Supp. 957, 975–76 (S.D.N.Y. 1965), aff’d, 383 F.2d 166 (2d Cir. 1967), cert, denied, 390 U.S. 956, reh’g denied, id. at 1037 (1968).

37 For the opinion that the act of state doctrine “is constitutionally compelled,” see Occidental of Umm al Qaywayn, Inc. v. A Certain Cargo of Petroleum Laden Aboard Tanker Dauntless Colocotronis, 577 F.2d 1196, 1200–01 n.4 (5th Cir. 1978).

38 444 U.S. 996 (1979).

39 Id. at 997.

40 Id. at 1001.

41 Id. at 1002.

42 Edwards v. Carter, 580 F.2d 1055 (D.C. Cir. 1978).

45 Baker v. Carr, 369 U.S. 186, 211 (1962).

44 INS v. Chadha, 462 U.S. 911 (1983).

45 See Glennon, The War Powers Resolution Ten Years Later: More Politics than Law, 78 AJIL 571, 578–80 (1984).

46 T. Reveley, War Powers of the President and Congress 49 (1981).

47 S.J. Res. 323, 100th Cong., 2d Sess. §3(b)(1)(A) (1988); a somewhat larger group is also visualized by §3(c)(1).