Why the War Powers Resolution Has Disappointed Its Supporters

Congress will soon have the opportunity to terminate Donald Trump’s decision to commit U.S. combat forces to a war with Iran. Under the War Powers Resolution (WPR) of 1973, Congress not only required the president to notify it within forty-eight hours of any presidential use of military force, but also gained the right to put an end to such an action after sixty days. That deadline will arrive by the end of this week, but Congress seems certain not to take the opportunity to put a stop to what has become an unpopular and seemingly open-ended conflict. That situation reflects a longer-term pattern in which Congress has consistently declined to use its authority under the WPR to call a halt to military adventures it did not authorize in advance. A look back at the genesis of the War Powers Resolution helps explain why it has consistently disappointed its advocates.

The WPR grew out of a congressional backlash against the executive branch’s decision to massively escalate U.S. military involvement in Vietnam in 1965 without explicit congressional permission to do so. (An earlier resolution authorizing the use of U.S. military force against North Vietnam in the summer of 1964 was hastily passed seemingly without anyone on Capitol Hill understanding that President Lyndon Johnson would use it to justify his massive escalation nine months later.) President Richard Nixon’s polarizing decision in April 1970 to expand the war into neighboring Cambodia (and the secret use of U.S. military force in nearby Laos) compounded the sense in Congress that it was being excluded from its proper role under the Constitution to declare war.

The final catalysts in prompting Congress to pass the WPR came in the fall of 1973. Richard Nixon’s decision to intervene in the 1973 Arab-Israeli War (and place U.S. military forces on worldwide military alert thereafter) without prior congressional authorization provoked its members. So, too, did his decision to fire the Watergate Special Prosecutor (Archibald Cox) on October 20, 1973 (after dismissing both the U.S. Attorney General and the deputy attorney general for refusing to fire Cox) and announce that he had abolished that office. Nixon’s motive in undertaking what became known as ‘the Saturday Night Massacre” was to put an end to Cox’s efforts to gain access to the White House tapes, the contents of which – once revealed – would ultimately compel Nixon’s resignation. These latest acts – symptomatic of what scholars have called “the imperial presidency” – motivated Congress to respond by passing the WPR. The Senate had formally approved the measure on October 10th, and the House two days later. When Nixon predictably vetoed the WPR (on October 24th), the House and Senate both voted to override his veto on November 7^th.

Thus, the War Powers Resolution was born out of a sense in Congress and the country that the American presidency was out of control and needed to be reined in, with respect to the use of military force in particular. Legal scholars have argued that the measure was poorly drafted, which they suggest has contributed to its ineffectiveness. More important, however, is the practical problem of pulling the plug on a military venture once troops have been dispatched, and some have been killed in action. To terminate such a venture after sixty days would suggest to the American people that those lives had been wasted, something Congress has been understandably reluctant to do. Later presidents have compounded those basic problems by essentially ignoring the WPR when it suits them to do so. The courts have likewise contributed to the WPR’s ineffectiveness by declining to uphold efforts to enforce it. As a result, the War Powers Resolution now looks like symbolic legislation that conveys a sense of Congress’s opposition to unilateral executive branch action but without the teeth needed to put a stop to it. For all of these reasons, the war with Iran seems likely to continue despite considerable opposition to it in Congress.