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War Powers: The Operational Code of Competence

Published online by Cambridge University Press:  27 February 2017

W. Michael Reisman
W. Michael Reisman*
Affiliation:
Yale University
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Extract

Wholly apart from the questions of whether and under what circumstances major coercion is permissible under international law and whether minor coercion, including threats, is lawful, there is a broad and deep national consensus that the United States should continuously develop a military capacity sufficient for a range of contingencies and maintain it in a state of readiness. The consensus has been far less certain with regard to who will decide, and how, to initiate and use this capacity, at varying intensities. The original terms of the Constitution have been invoked by partisans of opposing views, but debate in those terms has proved inconclusive. Behind the legal bickering, a complex, but unstated, operational code has developed, allocating competence to initiate, direct and terminate different types of coercion among the branches. Parts of the operational code are clear and relatively stable over time. Other parts are less certain and can be projected only with qualifications, reservations or contingencies.

Type
Distribution of Constitutional Authority
Information
American Journal of International Law , Volume 83 , Issue 4 , October 1989 , pp. 777 - 785
Copyright
Copyright © American Society of International Law 1989

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References

1 See, e.g., National Security Act of 1947, 10 U.S.C. §133(a) (1982) (readiness status of NATO military forces); 10 U.S.C. §3012(b)(1) (maintenance and preparedness of army); 10 U.S.C. §8012(b)(1) (maintenance of air force); 50 U.S.C. §401 (1982).

2 See, e.g., E. V. Rostow, “Once More unto the Breach”: The War Powers Resolution Revisited, 21 Val. U.L. Rev. 1, 3–7 (1986); R. Turner, The War Powers Resolution: Its Implementation in Theory and Practice 16–18 (1983); T. Reveley, War Powers of the President and Congress 170–75, 227–28 (1981); Franck, After the Fall: The New Procedural Framework for Congressional Control over the War Power, 71 AJIL 605, 607–08 (1977); Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair, 97 Yale L.J. 1255 (1988).

3 By operational code is meant a set of norms that operate in a certain sector and that actors deem to be authoritative even though the norms may be inconsistent with formal legal codes. The operational code is normative but is inferred from past practice and projections of future trends, rather than from documents alone. See generally W. M. Reisman, Folded Lies (1979); W. M. Reisman & A. Willard, Incidents: The Law That Counts in International Politics (1987).

4 See U.S. Const. Art. I, §8, els. 1, 3, 11; id., Art. I, §10; id., Art. II, §2; id., Art. Ill, §2. See The Federalist Nos. 48 (J. Madison), 51 (A. Hamilton or J. Madison), and 73 (A. Hamilton).

5 U.S. Const. Art. II, §2.

6 Id., Art. I, §8, cl. 11.

7 Id.

8 For background, see Reisman, Private Armies in the Global War System: Prologue to Decision, 14 Va. J. Int’l L. 1 (1973); McDougal, Reisman & Willard, The Effective Power Process, 21 U.C. Davis L. Rev. 807 (1988).

9 See Manning, Congress, the Executive and Intermestic Affairs, 55 Foreign Aff. 306 (1977).

10 See National Security Act of 1947, 10 U.S.C. §§131–133(1982).

11 A. McNair, The Legal Effects of War, at vii (4th ed. 1966).

12 McDougal, Lasswell & Reisman, The World Constitutive Process of Authoritative Decision, in M. S. McDougal & W. M. Reisman, International Law Essays 191 (1981).

14 See McDougal & Lans, Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy, in M. S. McDougal & Associates, Studies in World Public Order 404, 412 (1987).

15 Since and including the landmark case of United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), most of the cases reviewed by the Supreme Court in which a purported violation by the Executive of congressional power over foreign affairs took place were not initiated by Congress (which apparently would have let the matter pass), but by private parties (who felt that their interests were prejudiced and whose lawyers deemed it tactical to frame the violation in constitutional terms). See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); Goldwater v. Carter, 444 U.S. 997 (1979); Dames & Moore v. Regan, 453 U.S. 654 (1981).

16 See, e.g., Japanese Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221 (1986); Dames & Moore v. Regan, 453 U.S. 654 (1981); Haig v. Agee, 453 U.S. 280 (1981); Goldwater v. Carter, 444 U.S. 997 (1979); Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103 (1948); United States v. Pink, 315 U.S. 203 (1942).

17 See debates on S. Res. 99, 82d Cong., 1st Sess., 97 Cong. Rec. 2539, 2571, 2589, 2644, 2652, 2736, 2739, 2769, 2845, 2851, 2862, 2871, 2903, 2910, 2938, 2966, 3008, 3041, 3056, 3062, 3076, 3144, 3161, 3254 (1951); see also H.J. Res. 9, 82d Cong., 1st Sess., 97 Cong. Rec. 34 (1951); S. Rep. No. 129, 91st Cong., 1st Sess. (1969); 115 Cong. Rec. 17,245 (1969) (National Commitments Resolution).

18 See S.J. Res. 130, 82d Cong., 2d Sess. (1952); S.J. Res. 1, 83d Cong., 1st Sess. (1953); S.J. Res.73, 83d Cong., 1st Sess. (1953); S. Rep. No. 412, 83d Cong., 1st Sess. (1953) (Bricker Amendment).

19 See, e.g., Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1988, Pub. L. No. 100-202, tit. II, §§542, 569, 570, 577, 101 Stat. 1329, 1342–44, 1365, 1373–74, 1379–80 (1987).

20 G. Allison, Essence of Decision: Explaining the Cuban Missile Crisis 194–95 (1971).

21 Gulf of Tonkin Resolution, Joint Resolution of Aug. 10, 1964, H.R.J. Res. 1145, 88th Cong., 2d Sess., 78 Stat. 384, repealed by Act of Jan. 12, 1971, Pub. L. No. 91-672, §12,84 Stat. 2053.

22 See, e.g., The War Powers Act: Hearings Before the Senate Comm. on Foreign Relations, 93d Cong., 1st Sess. 23–25 (1973) (Statement of Nicholas deB. Katzenbach); see also 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 1–7 (Comm. Print 1970) (Statement of Nicholas deB. Katzenbach in opposition to National Commitments Resolution).

23 50 U.S.C. §§1541–1548(1982).

24 1 U.S.C. §112b (1982).

25 See T. Eagleton, War and Presidential Power 213–20 (1974).

26 Unlike the Constitution, the Resolution refers to force in broad terms, to include “assignment of members of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities.” 50 U.S.C. §1547(c) (1982). The legislative history indicates, “The word hostilities was substituted for the phrase armed conflict’ .” H.R. Rep. No. 287, 93d Cong., 1st Sess. 7 (1973).

27 Phillip Zelikow has compiled from public records 44 instances of the use of armed force abroad by the United States from 1975 to 1982, 88% of which, he concluded, had favorable outcomes in relation to the objectives of the U.S. decision makers. In the same period, the War Powers Resolution was invoked nine times, of which only five involved types of incidents for which it was intended.

28 See Executive statements reporting on uses of force, reprinted in U.S. Naval War College, The 1973 War Powers Resolution: Law and Practice, Tab D; Glennon, The War Powers Resolution Ten Years Later: More Politics than Law, 78 AJIL 571, 572–75 (1984).

29 INS v. Chadha, 402 U.S. 919 (1983).

30 See generally P. Bracken, the Command and Control of Nuclear Forces (1983). Even proponents of strong congressional competence acknowledge the President’s competence in the strategic area. See, e.g., Franck, supra note 2, at 607–11. Rostow has criticized Franck in this regard but is not persuasive. Rostow, supra note 2, at 48–50.

31 See A. Roach, A Navy Lawyer’s View of the Military’s Experience Under the War Powers Resolution, Remarks at the Seventh Annual Seminar of the Center for Law and National Security, University of Virginia School of Law 7, 9 (Sept. 23, 1988).

32 Argentinian officers could be used directly in Nicaraguan contra operations, but South African troops could not be used in Angola. See Argentina Linked to Rise in Covert U.S. Actions Against Sandinistas, N.Y. Times, Apr. 8, 1983, at A10, col. 3; Abandon Angola to Russia?, U.S. News & World Rep., Feb. 23, 1976, at 35; Angola: Dangers that Accuse Congress, id., Dec. 29, 1975, at 19.

33 Thus, U.S. News & World Report stated that a “radio message between two Moslem militia units” said, “If we kill 15 marines, the rest will leave.” Marines Draw a Beard on Snipers, U.S. News & World Rep., Oct. 31, 1983, at 13.

54 See United Nations Organizations Reform in Budget Procedures, 22 U.S.C. §287e note (Supp. IV 1986).

35 See, e.g., Anti-Terrorism Act of 1987, 22 U.S.C.A. §§5201-5203 (West Supp. 1988).

36 46 Cong. Q. Weekly Rep. 3206 (1988).