Power Wars Blog by Charlie Savage

More on my discussion with Stephen Griffin on Republicans and the Myth that Every President Since Nixon has Declared the War Powers Resolution’s 60-Day Clock to be Unconstitutional

Stephen Griffin and I have been discussing the myth that all presidents since Nixon have deemed the War Powers Resolution’s 60-day clock to be unconstitutional. (Griffin #1, me #1, Griffin #2, and now this from me.) In sum, we agree it’s a myth because Democratic presidents have taken the opposite position, but we disagree about whether post-Reagan Republican administrations’ hostility to the provision rose to the level of those three presidents consistently taking the position that it was unconstitutional (Griffin’s view), or whether it instead merely amounted to hints and largely behind-the-scenes mutterings by legal advisers, in which case no actual precedent for the proposition that the 60-day-clock is unconstitutional has yet to be established under presidents of either party (my view).

We may be running out of steam, but I want to make three points.

First, the most important marker here is Reagan’s signing statement in 1983 about Lebanon, which Griffin’s original blog post described as “taking the position” that the 60-day clock is unconstitutional. I’d like to point out that in his 2013 book, Long Wars, Griffin describes that signing statement much less definitively and closer to my view that it stopped short of affirmatively taking a position. Specifically, on page 173, he writes that Reagan “appeared to suggest that the statute might infringe on his powers as commander in chief” (my emphasis). So I agree with his earlier formulation!

Second, in his latest post, Griffin also brings up a 1987-88 operation in the Persian Gulf in which Reagan dispatched the navy to escort oil tankers toward the tail end of the Iran-Iraq War. The American naval vessels were at risk of being hit by an Iranian mine or missile. The Americans also occasionally fired, including on an Iranian helicopter suspected of laying mines in 1987. (To say nothing of the Americans mistakenly shooting down a civilian Iranian airliner, killing 290 people, in 1988, after the WPR dispute had run its course.) Griffin says this didn’t register as a WPR 60-day-clock precedent because “it’s pretty clear Republicans already believed the WPR was unconstitutional.”

My take: There was a WPR dispute about this operation, but  it was another example of a dispute over when the statute applied, not an instance in which Reagan acknowledged that the provision applied but acted in defiance of it based on a constitutional theory. The Reagan administration claimed that sending American naval ships to escort tankers did not constitute the sort of hostilities covered by the WPR, so it provided no WPR notice to Congress in the first place (the 60-day clock starts ticking when such a notice is made). This article in the New York Times from 1987 makes this clear:

Some experts say the law is less useful in ”gray areas,” such as the Persian Gulf, where the United States decision to escort oil tankers does not fall under usual definitions of war.

”When you get to a real war question, such as sending troops to Nicaragua, the War Powers Act is a powerful instrument in the political process,” said Fred Wertheimer, president of Common Cause, the public affairs lobby.

But there is wide agreement in both branches of Government that the Persian Gulf crisis has illuminated some serious flaws in the War Powers Act, and one prime problem is when the measure actually applies.

To many Administration critics, all doubts about the law’s relevance were erased last month when a United States helicopter fired on an Iranian ship that it said was laying mines. ”If that’s not being involved in imminent hostilities,” Senator Sasser complained, ”I don’t know what is.”

The Administration itself was divided, with Howard H. Baker Jr., the White House chief of staff, arguing that the law did apply to the Gulf. But he was overruled, and one senior official said the White House position now is that ”the situation in the Persian Gulf does not justify notification under the War Powers Act.”

Third, Griffin suggests that media reports in New York Times (from a generation ago) contributed to the larger misimpression that all presidents have taken the view that the 60-day clock is unconstitutional. In his latest blog item, Griffin observes that in the 1980s the executive branch (starting with Reagan’s 1983 signing statement about Lebanon) “began pushing back against what were seen as congressional encroachments in matters of national security.  This resulted in some NYT articles (as I remember written by Stuart Taylor) that contributed to the idea that presidents had generally rejected the WPR.”

That’s interesting, and he may be right that oversimplified or sloppy reporting was a contributing factor. I decided to look up the article(s) to see what they said, just to explore the topic. So the rest of this blog post is no longer a rebuttal to Griffin — it’s just looking at what NYT articles from the 1980s said.

It may be Griffin is remembering this 1983 article by Taylor about whether the Grenada invasion was legal, because none of the others in the NYT archives with Taylor’s byline and the words “War Powers Resolution” seems remotely on point. But it may also be that Taylor didn’t write the one Griffin is recalling at all, because this article doesn’t say anything about other presidents. The only relevant bit is about 2/3 down. After describing how Reagan notified Congress about the invasion “consistent with” the WPR but didn’t use the language for when the 60-day clock is triggered, echoing Reagan’s earlier squirrely approach with whether the WPR applied to peacekeeping forces in Lebanon, Taylor obliquely references the Reagan signing statement about Lebanon like this:

Mr. Reagan’s failure to refer to ”hostilities” resembles his recent refusal to acknowledge or report that the marines in Lebanon were involved in ”hostilities” within the meaning of the 1973 resolution, and his suggestion that the 90-day [sic] limitation was unconstitutional.

Notably, in Long Wars, Griffin makes a similar argument about NYT articles contributing to this misunderstanding but instead cites two articles by other reporters. To wit, also on page 173, he wrote:

Ignoring the Carter OLC opinion that the WPR was constitutional, the Reagan and Bush I administrations took the line that every president since Nixon had challenged the constitutionality of the law while in office, the sixty-day clock in particular.[119] While the record was far more complex than indicated by this simple statement, it was so widely reported in the press that the notion was difficult to debunk.[120]

[119] This is reflected in newspaper stories of the period. See Wayne King and Warren Weaver Jr., “Briefing: Department of Hostilities,” N.Y. Times, March 29, 1986; Steven V. Roberts, “War Powers? What War Powers?,” N.Y. Times, Oct. 6, 1987

[120] Barron and Lederman, “History,” at 1070 n. 529 [PDF 131 here]

One of these articles Griffin’s endnote 119 cites is the one I just quoted above, about the 1987 tanker escort operation. In that article, Steven Roberts did indeed remark in passing that “All Presidents since Mr. Nixon have challenged the constitutionality of the law.”  I would put this remark in the category of oversimplifying the WPR as a single thing whose constitutionality may be in doubt, when it’s really a collection of different provisions. See my first post about how just because Section 2 and its purported limits on the initial introduction of forces into combat has been challenged, that doesn’t mean Section 5(b)’s 60-day-clock is also unconstitutional.

The other article Griffin’s endnote 119 cites, the March 29, 1986, one by King and Weaver, was about a dispute between the Reagan administration and the (Democrat-controlled) House Foreign Affairs Committee about Reagan’s unilateral decision to send aircraft carriers into the Gulf of Sidra, leading to an exchange of missiles with forces of Libya, on March 23-24, 1986. Libya’s leader, Muammar Gaddafi, was trying to claim 62 nautical miles out as its territorial waters rather than the usual 12 nautical miles from a nation’s shore, triggering a freedom-of-navigation dispute not unlike what is happening off the coast of China today.

The question was whether this amounted to introducing forces into “hostilities” of the sort that required advance consultation with, and notice to, Congress, under Section 2 and 4 of the WPR. (If it did, and the operation was still happening two months later, then that would raise a clock issue at that time. But the operation was over within a few days. So this dispute was instead sparked by Reagan’s failure to consult Congress ahead of time and provide a formal WPR notice about it.)

The King and Weaver article says:

The War Powers Resolution, passed over a Presidential veto, was a reaction to the undeclared war in Vietnam and was intended to limit Presidential discretion in sending American troops into hostilities without consent of Congress. Opposed by every President since it was enacted, it says the President must consult with Congress before introducing the armed forces ”into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.”

The Foreign Affairs Committee complained in a letter to the White House that sending the Sixth Fleet into the Gulf of Sidra, fully expecting a military reaction from Libya, constituted just such a situation.

But yesterday, in a letter to the committee signed by William L. Ball, assistant to the President, the Administration said it did not believe that ”the resolution was intended to require consultation before conducting naval maneuvers in international waters or air space” – an interpretation that would eliminate roughly two-thirds of the world from provisions of the resolution if the action was characterized as ”maneuvers.”

The letter said that the question had been ”carefully considered” and that Administration lawyers had concluded, ”The operations did not place United States forces into hostilities or into a situation where imminent involvement in hostilities was clearly indicated by circumstances.”

So: First, this was, obviously, another dispute about statutory interpretation — whether the WPR applied to the situation at hand, not whether some or all of the WPR was unconstitutional. Second, it was not about the 60-day clock provision.

Finally, obviously, saying that every president has opposed a law is not the same thing as saying that every president has considered that law to be unconstitutional; one can oppose something as a bad idea and even think Congress should repeal it — like supporting the unsuccessful 1995 attempt to repeal the WPR — without also thinking that Congress had no constitutional authority to enact it in the first place. But Griffin may be right that ordinary readers might not catch that distinction, so this could also have been a contributing factor in the rise of the myth.

At this point I doubt anyone other than the two of us are still paying attention, so I’ll stop nerding.