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The American Constitutional War Powers from Afar — Another Look

Published online by Cambridge University Press:  24 January 2025

William B Spong Jr
William B Spong Jr*
Affiliation:
Marshall-Wythe School of Law, College of William and Mary
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Extract

This is the sixth in the annual Menzies Lecture Series. This lecture was delivered at the Australian National University in October 1990.

The allocation of war powers between the President and Congress under the Constitution of the United States and the problems that have flowed therefrom for two centuries, are subjects perhaps too remote to inflict upon an Australian audience. Nevertheless, I do so, mindful that the vast nuclear capability of my country, as well as its present deployment of significant forces on land and sea in much of a shrunken world, make decisions of war and peace by the United States a matter of some concern for those living beyond its geographic boundaries, and throughout this planet.

Information

Type
Research Article
Information
Federal Law Review , Volume 19 , Issue 2 , June 1990, pp. 98 - 115
Copyright
Copyright © 1990 The Australian National University

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References

1 Pub L No 93-148, 87 Stat 555 (codified as amended at SO USC §1541-1548 (1976 & Supp IV 1980)). Hereinafter referred to as Resolution. Attached as Appendix I.

2 Resolution §2(a).

3 Youngstown Sheet & Tube Co v Sawyer 343 US 579 (1952), Jackson J concurring at 634-635.

4 US Constitution Art I §8.

5 Ibid Art II § § 1, 2, 3.

6 A Hamilton, “Comparison of the President with Other Executives” in B Fletcher Wright (ed), The Federalist No 69, 444, 446.

7 Lodge, H C (ed), The Works of Alexander Hamilton (1st 1904) Vol 8, 249-250Google Scholar.

8 The five declarations of war involved the war of 1812, the Mexican War, the Spanish-American War, World War I and World War II.

9 Spong, W B, “The War Powers Resolution Revisited: Historic Accomplishment or Surrender?” (1975) 16 Wm & Mary L Rev 823, 859Google Scholar.

10 Id.

11 A concurrent resolution is not subject to a presidential veto. In 1983, in Immigration and Naturalization Service v Chadha 462 US 919, the Supreme Court held a one-House veto provision by concurrent resolution to be unconstitutional, violative of Art I §7 cl 3 that reads:

Every Order, Resolution, or Veto to which the Concurrence of the Senate and the House of Representatives may be necessary (except on the question of Adjournment) shall be presented to the Presented of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be iepaaed by two thirds of the Senate and House of Rep-lives, according to the Rules and Limitations prescribed in the Case of a Bill.

While a final judicial detenninalion baa not been made of a two-House legislative veto as contained in the War Powers Resolution nor have other arguments been heard, distinguishing the concurrent resolution in 5(c) from that in Chadhaa, the weight of opinion, though mixed, indicates that all legialalive vetoea will fail becauae they do not meet the presentment requirement See Powell J, concurring, Chaadha 462 US, 9S9; White J, dissenting, 970-971.

12 Resolution §3.

13 Ibid §(d)(l).

14 Ibid §4.

15 Ibid §(a)(l).

16 Ibid §5(a).

17 Id.

18 Most Congressional concern about the Mayaquez incident centered upon consultation. Congressional leaders complained that the White House called and only informed them of the action being taken; that this was done by lower level liaison people and their opinions were not sought. President Ford, on the other hand, complained of the difficulty of locating members of the House and Senate in order to discuss the situation with them.

19 In re Neagle 135 US 1 (1890); Perrin v United States 4 Ct Cl 543 (1868) affirmed 79 US (12 Wall) 31S (1870).

20 Hearings on War Powers: A Test of Compliance Before the Subcomm on International Security and Scientific Affairs of the House Comm on International Relations, 94th Cong, 1st Sess 93 (1975) at 90-91. J H Sullivan, The War Powers Resolution: A Special Study of the Committee on Foreign Affairs (1982) 219- 220.

21 Letter of 9 August 1990, from President Bush to Hon Roben C Byrd, President pro tempore of the Senate, Washington DC 20510. Attached as Appendix 2.

22 134 Cong Rec S7165-78 (6 June 1988).

23 Resolution §2(b); cf US Constitution An 1 §8 Cl 18.

24 119 Cong Rec 36, 194 (1973).

25 An exception is Professor Louis Henkin, “Foreign Affairs and the Constitution ” (1988) Foreign Affairs 284, 301-303; Nuclear Defense Policy: The Constilutional Framework, The Constitution and National Security 281.

26 Crockett v Reagan 558 F Supp 893 (DDC 1982), affixed 720 F 2d 135S (DC Cir 1983); Sanchez Espinoza v Reagan 568 F Supp 596 (DOC 1983), affixed 770 F 2d 202 (DC Cir 1985); Conyers v Reagan, 518 F Supp 324 (DDC 1984), appeal dismissed 76S F 2d 1124 (DC Cir 1985; Lowry v Reagan 616 F Supp 333 (DDC 1987), appeal dismissed No 87-5426 (DC Cir 1988). These cases, in the order cited above, involved action by Members of Congress, claiming Presidential non-compliance with the War Powers Resolution in El Salvador, Nicaragua, Grenada and the Persian Gulf.

27 W Taylor Reveley III, War Powers of the President and Congress: Who Holds the Arrows and Olive Branch? (1981) 207.

28 United States v Nixon 418 US 683, 703 (1975).

29 The amendments, introduced by Senators Byrd, Warner, Mitchell and Nunn offered a complete revision of the War Powers Resolution. SJ Res 323, 100th Cong 2d Sess (1988).

30 For a thorough discussion of “The Use of Force Act”, see JR Biden and J B Ritch, “The War Power at a Constitutional Impasse: A 'Joint Decision' Solution” (1988) 77 Geo L J 367.

31 Id.

32 Supra n 29.

33 Professor Ely's proposals are made in J H Ely, “Suppose Congress Wanted a War Powers Act That Worked” (1988) 88 Col L Rev 1379.

34 Ibid 1419.

35 Supra n 30.

36 W Taylor Reveley, supra n 27, 268.