The War Powers Resolution of 1973: An Assertion of Authority Without the Teeth to Enforce It

The origin, background, and history of the War Powers Resolution of 1973 is an interesting one in that its highly reflective of the era in which it was spawned and truly illustrates how our "checks and balances"––style of government ensures that each branch is held accountable to the other two. What's ironic about this particular piece of legislation is that while the executive branch still has yet to acknowledge its validity since its enactment some four decades ago, every attempt at enforcement by members of the legislature has been met with a sort of non-committal legal gymnastics by the judiciary. As such, whether this legislation is largely symbolic or can ever be practicably enforced upon one branch of government by another is certainly a valid question.

Enacted "because of widespread concern that Congress had allowed its war power to atrophy in the Korean and Vietnam conflicts", as legislative attorney Michael John Garcia wrote in his congressional report "War Powers Litigation Initiated by Members of Congress Since the Enactment of the War Powers Resolution", perhaps the most enduring characteristic of this particular piece of legislation is the lengths the judiciary will go to abstain from rendering a verdict one way or the other. Garcia enumerates eight instances of members of the legislature bringing suit against the executive branch, and trial courts have used every reason from lack of standing to the question of ripeness and the political question doctrine to justify their abstention from ruling one way or the other.

The first such instance took place nine years after the enactment of the law in the case of Crockett v. Reagan, in which 29 members of the legislature brought suit against the presidential powers of the executive branch to declare that the American military involvement in El Salvador assumed the war-making powers of the Congress and violated the resolution. The Reagan administration asked the trial court to dismiss the case due to the inherent political question that the suit contained, and the court obliged. The sheer unenforceability of the resolution is perhaps best embodied in this first of examples, because while the judiciary is indeed justified in abstaining in what can be aptly construed as political infighting, the dearth of desire to rectify such a dispute is in reality a basic failure of the judiciary to serve its purpose.

In the cases that followed, the judiciary has used justifications ranging from not wanting to "rattle the delicate diplomatic balance that is required in the foreign affairs arena" (Sanchez-Espinosa v. Reagan) to adjudicating that members of Congress lacked standing to bring legal action against the president (Campbell v. Clinton) to vindicate its inaction. Essentially, the only means for the legislature to effectively impose its will and enforce its laws upon the executive is to refuse to fund its noncompliance, because as Campbell v. Clinton illustrates, anything short of pulling the plug on an executive operation is an apparent consent to it.

Aside from completely withdrawing funding, Congress has little left to do but rebuke the president with legislation that is not much more than a public slap on the wrist. It is unfortunate that the judiciary is so reluctant to interpret and implement a seemingly cut-and-dry piece of legislation, and their resistance to doing so undermines one of the founding principles that makes this country so great. In the long run, the War Powers Resolution is just a guideline for the executive to oblige the legislature, but little more than that.

Works Cited

Garcia, Michael John. War Powers Litigation Initiated by Members of Congress since the Enactment of the War Powers Resolution. Congressional Research Service. 17 Feb. 2012. Web. 26 Mar. 2014.

Crockett v. Reagan, 558 F. Supp. 893 (D.D.C. 1982)

Sanchez-Espinosa v. Reagan, 568 F. Supp. 596 (D.D.C. 1983)

Campbell v. Clinton, 52 F. Supp.2d 34 (D.D.C. 1999)