If the War Powers Act Isn’t Meant to Be Used, Scrap It

When is a law not a law? Evidently when it’s the War Powers Act. Passed by Congress in 1973, and enacted into law over a presidential veto, it has been ignored by four successive Chief Executives. Its most recent snub was by President Reagan, who claims that it does not apply to current U.S. military actions in the Persian Gulf.

It is not surprising that Presidents would ignore it, for it was enacted precisely to force them to share their war-making decisions with Congress. Its preamble states its purpose: “to fulfill the intent of the framers of the Constitution of the United States and ensure that the collective judgment of both the Congress and the President will apply to the introduction of U.S. armed forces into hostilities, wherein situations where imminent involvement in hostilities is clearly indicated by the circumstances, and (to) the continued use of such forces in hostilities or in such situations.”

That sounds clear enough. It would obviously seem to apply to the Mayaguez incident in the Ford Administration, the Iran raid in the Carter Administration and the stationing of Marines in Beirut, the Grenada invasion, the raid on Libya and now the sending of U.S. warships into the Persian Gulf by the Reagan Administration. But in the 14 years since its enactment, the War Powers Act has yet to be invoked.

What is surprising is that in those 14 years Congress has yet to force a President’s hand. That pattern of congressional inaction was repeated last month when an amendment triggering the act was added to the defense appropriations bill. As that amendment was debated, subsequent versions became weaker and weaker, and the amendment ended up as a prohibition only against escorting Kuwaiti tankers, rather than as a challenge to American naval presence in the Persian Gulf. And even that watered-down version was threatened with a presidential veto.

This latest congressional action reveals the War Powers Act’s fatal flaw. In many respects this act was the political/military equivalent of the Gramm-Rudman Act concerning budget reductions. Just as Gramm-Rudman was an attempt to force Congress to meet its budgetary responsibilities, so the War Powers Act was enacted in 1973 as an artificial backbone to stiffen congressional resolve and to require members of Congress to stand up and be counted on matters of war and peace. But, when it came down to it, that’s the last thing that most congressmen wanted.

With its power over the purse strings, Congress could have ended the Vietnam War at any time of its choosing. But not until after the withdrawal of all U.S. forces from Vietnam, following the January, 1973, Paris “peace” accords, did Congress enact the Cooper-Church Amendment that banned the use of any funds for U.S. military operations in or over Vietnam, Laos or Cambodia without prior congressional approval.

No matter how opposed the members of Congress were to the war, as long as American soldiers were in combat Congress did not want to appear to be under-cutting their efforts. If Congress did not have the guts to curtail military operations by using its budgetary authority, why would one suppose that it would be any more likely to use its authority under the War Powers Act?

The War Powers Act unwittingly perpetuated the dilemma of Congress. In 1973 Sen. Thomas Eagleton of Missouri tried to point out the problems that Congress was causing for itself. “The President . . . could deploy troops wherever he wanted, tomorrow. There is a 60-day period (the act permits the President to commit U.S. forces to action for up to 60 days, or 90 days iftheir safety is threatened, before its sanctions come into effect), but the troops are there. They are deployed, being shot at, dying and the flag is committed.” His words were prophetic, for, as recently noted in Congressional Quarterly: “Members feared that once Reagan had publicly committed the country to the course, Congress would risk damage to U.S. prestige if it reversed him.”

The War Powers Act has proved to be a sad substitute for the constitutional provision that Congress, and Congress alone, has the power to make war. Like Gramm-Rudman, it sounded better in theory than it has worked in practice.

Not only that, but the squabble over its implementation has weakened our national defenses. War at its essence is a contest of wills, but instead of its intended purpose of signaling American unity of purpose, the War Powers Act has instead ensured American divisiveness, uncertainty and vacillation. Sen. John Glenn (D-Ohio), himself a Marine combat veteran, has it right: Either enforce the War Powers Act or take it off the statute books.