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War Powers Resolution: America's Most Misunderstood Law

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Forty years ago this month, Congress overrode President Nixon's veto of the War Powers Resolution (WPR). Prominent legal scholars were calling it a "dead letter" just a few years ago, but it certainly looked alive when members of Congress were invoking it during recent debates over President Obama's Libyan intervention and his proposed action in Syria.

Still, the WPR could well be the most misunderstood law in American history.

It's worth recalling the post-Vietnam context in which the law was passed. At every stage of its enactment in 1973, the WPR was approved by large bipartisan majorities and enjoyed overwhelming public support. Its central provisions required the president to consult with Congress and created a "60-day clock" to time the mandatory withdrawal of U.S. troops after the unilateral presidential initiation of "hostilities." Despite this relatively straightforward enactment history, nearly every aspect of the WPR remains in dispute.

You may have heard that presidents uniformly rejected the WPR's constitutionality. Yet Gerald Ford, the first president subject to the WPR, pledged compliance while he was in office. Of course, Ford and Jimmy Carter had little choice, given the agitated and skeptical state of congressional and public opinion after Vietnam.

In the Carter administration, the Office of Legal Counsel ruled that the WPR's central provisions were constitutional -- a ruling that has never been withdrawn. The myth of presidential rejection actually was created by officials in the Reagan administration. President Clinton raised no constitutional objection to the WPR; neither has President Obama.

You may have heard that the WPR was a failure. This common belief depends on very controversial historical judgments concerning the practical ability of presidents to go to war before and after the WPR. William Bundy, whose service in the Kennedy and Johnson administrations positioned him to make comparisons, observed correctly in 1998 that, under the WPR, "the burdens of proof, consultation, and approval for a President ordering American military forces into action were undoubtedly made greater than they had been for Richard Nixon, Lyndon Johnson, or John F. Kennedy."

Although Bundy's conclusion may seem surprising, it no doubt rested in part on the stark contrast between the early Cold War -- when presidents had wide discretion over the use of military force -- and the constraints they faced after Vietnam, the so-called Vietnam syndrome. Still, that doesn't show that the WPR failed.

If the law has been seriously misunderstood, what can be said 40 years on that will advance the debate over presidential war powers?

First, the WPR was well-justified as a matter of separation of powers. Constitutional law casebooks ignore the overwhelming case that Presidents Kennedy, Johnson and Nixon repeatedly misled Congress and the American public about the Vietnam War. To put it another way, the executive branch accumulated a very poor record over a long period on a matter of foreign policy of central importance to the government and the people. How well the branches of government exercise their responsibility has always been relevant to evaluating whether more meaningful checks on their power are required. If the WPR hasn't worked, it should be replaced, not abandoned.

Next, the law highlighted the desirability of explicit congressional authorization for major military conflicts. In part because of the WPR, we now live in the age of AUMFs: Authorizations for Use of Military Force. Although some still wonder what happened to literal declarations of war, informed legal scholars know that AUMFs are their constitutional equivalent.

Finally, the main flaw in the WPR was the lack of a workable consultation mechanism, something President Ford pointed out. A bipartisan study in 2009 by the University of Virginia's Miller Center proposed one effective way of dealing with this problem: a Joint Congressional Consultation Committee. Congress should consider this worthy proposal.

President Reagan once called the Vietnam War "a noble cause." This was more nearly true of the WPR, a well-meaning, if imperfect, effort to deal Congress back into the decision for war.

Stephen M. Griffin is Rutledge C. Clement, Jr. Professor in Constitutional Law at Tulane Law School. He is the author of Long Wars and the Constitution (Harvard University Press, 2013).