Last week, over at Balkinization, Stephen Griffin took issue with a brief passage in my book Power Wars. In chapter 12, I tell the story of the Obama administration’s internal fight and agonies over the War Powers Resolution’s 60-day limit for unauthorized hostilities during NATO’s 2011 air war in Libya. Congress appeared to be unable or unwilling to vote for an authorization at that political moment, and Obama, for operational reasons, did not want to stop American fighters and drones from being able to fire missiles at pro-Gaddafi forces. But he and his legal team also did not want to become the first administration to declare the 60-day clock law to be an unconstitutional constraint on the president’s commander-in-chief powers — even though some members of Congress (including Boehner and McCain) thought that it was, and even though taking that position would have solved their problem. Instead of creating such a constitutional precedent, they came up (to both internal and external controversy) with a narrow interpretation of the term “hostilities” under which the clock provision did not apply to what the U.S. was doing over Libya. In setting up that dilemma, I noted that “There is an oddly widespread myth that every president since Nixon has declared this limit to be unconstitutional. This is simply false.”
Griffin agrees with me that it is false when people say (as people, including some who should know better, weirdly do, over and over) that all presidents since Nixon have declared the 60-day clock to be unconstitutional. But he maintains that a partisan split has emerged, and “Republican presidents, starting with Reagan in 1983, have indeed taken this position consistently. I demonstrate this at length in [his 2013 book] Long Wars. In other words, the available evidence supports the proposition that the two parties disagree over the scope of presidential war powers and this has created a bifurcated legal reality.”
Griffin had said something similar in a blog post in 2011 on Balkinization, responding to something similar I had written in the midst of the Libya controversy. I don’t think he and I actually disagree about much – it boils down to what it means for a president or administration to actually declare something or affirmatively take a position or even establish a precedent, versus just sort of grumble about something vaguely.
In this post, I explore the issue more deeply. I’ve also curated a set of relevant documents, which I include at its end.
Preliminary matter #1: historical contingency
For the most part, the issue has not come up very often. Presidents got authorization for major wars (Gulf War, Afghanistan/Al Qaeda, Iraq). Most minor wars or combat was over long before 60 days (invasions of Grenada and Panama, one-off bombings like Libya in 1986). And, in the case of peacekeeping operations like Somalia, presidents maintained that fighting was too intermittent to count as the sort of “hostilities” that triggered the clock. The big outliers were Clinton’s Kosovo air war in 1999 and Obama’s Libya air war in 2011, both of which were resolved with the administration making a disputed statutory interpretation rather than a constitutional override claim.
Preliminary matter #2: when people say the “War Powers Resolution” is unconstitutional, it’s important to clarify what they’re talking about specifically.
One source of confusion about the War Powers Resolution is that the act contains several parts that people sometimes get sloppy and conflate. Even if some parts of the WPR are unconstitutional, that doesn’t mean that other parts are unconstitutional. Here are three distinct parts to focus on:
- The statute created by Section 2(c) says presidents may only introduce forces into hostilities after Congress has declared war or authorized force by statute, or if the United States has been attacked. No president has respected that narrow list of when he may unilaterally dispatch forces into combat, so it is fair to say that every president has considered this purported rule to be an unconstitutional constraint on commander-in-chief powers.
- The statute created by Section 5(c) says Congress can direct a president to withdraw troops from any specific combat mission even before the 60-day clock has run out by passing a concurrent resolution – that is, something a president would have no opportunity to veto. Since the Supreme Court’s landmark 1983 decision INS v. Chadha, it has been clear that this provision is unconstitutional.
- But even if those provisions are unconstitutional, that does not mean that the 60-day clock provision – the statute created Section 5(b) – is invalid. This is the provision which automatically requires presidents to terminate a combat operation after 60 days if Congress has not acted to authorize it. Nixon said it was unconstitutional in his veto message, but Congress overrode his veto and enacted the resolution into law anyway.
So what has the post-Nixon executive branch said about the 60-day clock provision?
THE 1980 OLC MEMO
The starting point is that in 1980, the Justice Department’s Office of Legal Counsel concluded that the clock is constitutional:
We believe that Congress may, as a general constitutional matter, place a 60-day limit on the use of our armed forces as required by the provisions of [section 5(b)] of the Resolution. The Resolution gives the President the flexibility to extend that deadline for up to 30 days in cases of “unavoidable military necessity.” This flexibility is, we believe, sufficient under any scenarios we can hypothesize to preserve his function as Commander-in-Chief. The practical effect of the 60-day limit is to shift the burden to the President to convince the Congress of the continuing need for the use of our armed forces abroad. We cannot say that placing that burden on the President unconstitutionally intrudes upon his executive powers. Finally, Congress can regulate the President’s exercise of his inherent powers by imposing limits by statute.
O.L.C.’s legal analysis is binding on the executive branch unless its interpretations are overruled by the attorney general or the president. No subsequent administration has revoked that memo, so in that very important sense the view that the 60-day clock is constitutional has remained consistent executive branch law throughout the Reagan, Bush-Quayle, Clinton, Bush-Cheney, and Obama administrations. And throughout that time, no president of either party has declared that he was violating the 60-day clock as an exercise of any constitutional authority to override it.
So what is Griffin’s objection?
Griffin overlays an observation about partisan disagreement to this pattern. He claims that the executive branch under subsequent Republican presidents – though not Democratic ones – essentially ignored this Carter-era O.L.C. memo and instead took the position that the 60-day clock was unconstitutional. His larger point is that “the question regarding adherence to the sixty day limit can arise meaningfully only when a Democrat occupies the White House” because no Republican president even cares about it.
In support of this objection, he points to three specific moments that indeed complicate this pattern: one in the Reagan administration, one in the Bush-Quayle administration, and one in the Bush-Cheney administration. These three moments, he contends, show that Republican presidents have consistently taken the position since 1983 that the 60-day clock is unconstitutional.
Just as Griffin thinks I oversimplified a bit by failing to note that GOP administration legal teams have been hostile to the 60-day-clock, I think he overstates a bit by portraying this hostility as rising to the level of GOP presidents actually declaring or taking the position that it is unconstitutional. Let’s look at each in turn.
THE 1983 REAGAN SIGNING STATEMENT
In 1982, Reagan dispatched troops to Lebanon to serve as peacekeepers. The following year, things were heating up, and leading lawmakers thought the troops were in sufficient danger that the mission counted as the sort of hostilities that needed authorization. After negotiation with the White House, Congress passed the “Multinational Force in Lebanon Resolution,” which Reagan signed on Oct. 12, 1983. In this bill, Congress declared that the 60-day clock had started ticking on Aug. 29, when two Marines were killed and 14 others injured during fierce fighting in Beirut, while authorizing the mission to continue for 18 months, by which time the United States was to have pulled its forces out.
The Reaganites did not like this intrusion by lawmakers into his foreign policy. (But they were very happy to have been forced into this a few weeks later when a suicide bomber killed 241 servicemen in Lebanon; when congressional critics began blaming Reagan for sending them there, administration defenders like Rep. Dick Cheney could point out that Congress now shared political responsibility for their presence.) When Reagan signed the resolution, he issued a signing statement making reservations about some of Congress’s expressions about WPR issues that he deemed “debatable.”
Reagan couched his objections partly in statutory interpretation terms, saying he did “not necessarily join in or agree with” Congress’s statement that the 60-day clock had been triggered on Aug. 29 because “I would note that the initiation of isolated or infrequent acts of violence against United States Armed Forces does not necessarily constitute actual or imminent involvement in hostilities, even if casualties to those forces result.” He also made policy objections to existence of the 60-day clock, explaining why he thought an “arbitrary and inflexible” 60-day deadline was an “unwise” limitation on American foreign policy.
But, importantly, Reagan also suggested that the 60-day clock might be unconstitutional, by making clear that his signature on the bill did not amount to any acquiescence to Congress’s view of the law and Constitution:
I believe it is, therefore, important for me to state, in signing this resolution, that I do not and cannot cede any of the authority vested in me under the Constitution as President and as Commander in Chief of United States Armed Forces. Nor should my signing be viewed as any acknowledgment that the President’s constitutional authority can be impermissibly infringed by statute, that congressional authorization would be required if and when the period specified in section 5(b) of the War Powers Resolution might be deemed to have been triggered and the period had expired, or that section 6 of the Multinational Force in Lebanon Resolution may be interpreted to revise the President’s constitutional authority to deploy United States Armed Forces.
These two sentences, tossed off in a signing statement and lacking any supporting legal analysis, are the most extensive negative analysis the executive branch has issued in public regarding the constitutionality of the 60-day clock.
Importantly, this comment falls short of an actual affirmative proclamation by Reagan that the clock is unconstitutional. And Reagan did not actually act contrary to the provision, establishing an historical precedent. Instead, in this very bill, he secured authorization from Congress within the 60-day period as Congress saw it, bringing his mission into compliance with the clock. Interestingly, Reagan’s Office of Legal Counsel was working on an authoritative memo analyzing another aspect of WPR (whether deploying CIA paramilitary forces counted) that it completed that same month, so it had an excellent opportunity to reconsider and revoke the 1980 opinion at that very moment and did not do so.
THE 1990 BUSH WHITE HOUSE COUNSEL MEMO
Griffin also points to an internal memo to George H. W. Bush from his White House counsel, C. Boyden Gray, on Aug. 7, 1990. It analyzed various legal issues raised by the possibility of acting unilaterally to push Saddam Hussein out of Kuwait, versus getting a declaration of war from Congress. Gray’s letter touches on the 60-day clock in one paragraph, and dismisses it as unconstitutional in an aside:
A declaration of war would have limited effect under existing statutes. It would fully satisfy the requirements of the War Powers Resolution, thereby eliminating the need to report certain force deployments to Congress and providing congressional authorization to continue deployments into hostile situations for more than 60 days. A joint resolution of Congress would also provide authorization to continue such deployments, however, though the requirement that certain deployments be reported to Congress would remain in effect. In the absence of either a declaration of war or a joint resolution, we would be subject to both the War Powers Resolution’s reporting requirement and its requirement – which we regard as unconstitutional – to terminate deployments into hostile situations after 60 days.
Who’s “we?” What’s the theory? What about O.L.C.’s contrary analysis, still on the books from 1980? Gray’s memo doesn’t say.
In any case, Bush never proclaimed this view publicly, and he ultimately sought and obtained congressional authorization for the Gulf War early in 1991. So the public only found out that Gray had written this many years later.
Back during the lead-up to the Gulf War, as Griffin notes in his book’s footnotes, Gray also made an interesting comment in a December 1990 memo to Bush’s chief of staff about the realpolitik problems raised by actually challenging the provision. Gray first noted that the administration had couched its WPR notifications to Congress about the troop build-up in Saudi Arabia in a way to avoid triggering the 60-day clock, because once it was triggered, the executive branch “would be required” to terminate the mission in two months. Then, he added:
We believe that the War Powers Resolution is unconstitutional insofar as it purports to allow Congress to compel the withdrawal of U.S. forces through inaction, but no President has wanted to jeopardize congressional support for his actions by defying the Resolution. It often falls to Executive branch lawyers to develop a legal theory permitting the President to avoid triggering the clock.
I think this observation by Gray dovetails with my view that while GOP administration legal teams did not like the 60-day-clock, no GOP president has actually taken the position that it was unconstitutional and their administrations have always instead couched what they were doing as acting consistently with it. Hence Obama’s dilemma in contemplating becoming the first president to actually proclaim it unconstitutional and openly defy it on claimed constitutional grounds.
THE 2002 YOO TESTIMONY
In April 2002, the Senate Judiciary Committee held a subcommittee hearing on the topic of “Applying the War Powers Resolution to the War on Terrorism.” Since Congress had enacted an authorization for the use of military force (AUMF) against the perpetrators of the 9/11 attacks, this was a largely theoretical topic. John Yoo, then a deputy assistant attorney general in the Office of Legal Counsel (and the author of many then-secret memos asserting vast executive powers to act in defiance of statutory constraints in a national-security matter) testified at the hearing. Yoo said:
This administration follows the course of administrations before us, both Democratic and Republican, in the view that the President’s power to engage U.S. armed forces in military hostilities is not limited by the War Powers Resolution. The sources of presidential power can be found in the Constitution itself. And I shall discuss both the War Powers Resolution and the Constitution in today’s hearing.
However, pretty much all of Yoo’s testimony that follows is about Section 2 of the WPR, and whether the president needed congressional authorization to initiate hostilities against Al Qaeda. He never specifically addressed Section 5(b), the 60-day clock. That said, I have no doubt that Yoo believes that the clock is unconstitutional, too, and that if asked, he would have produced an opinion saying so. That might have become the occasion for the executive branch to withdraw the 1980 O.L.C. opinion and substitute one saying the opposite. But because of the AUMF, there was no need to ask him to destroy it.
So what do I think?
I stick to my statement that despite discombobulated claims that every president since Nixon has declared the WPR’s 60-day clock to be unconstitutional, in fact none has. But I also agree with Griffin to a significant extent: it’s clear that behind the scenes, the legal advisers to Republican administrations, starting with Reagan, believed it was probably unconstitutional, even if they never grappled with the question seriously enough to commission a new Office of Legal Counsel memo or to revoke the existing one. This is explained by historical contingency: there was never a need, in practice, to deal with it.
Nevertheless, despite the strong hint in Reagan’s signing statement, the hostility on display in Gray’s memo to Bush 41, and the implications in Yoo’s testimony, none of those three presidents actually proclaimed the clock to be unconstitutional, nor acted in clear defiance of it. Thus, while some president may yet simply declare the 60-day clock provision to be an unconstitutional constraint on his or her commander-in-chief powers and act in clear disregard of it, there is currently no precedent for such an event.
In sum, my dispute with Griffin, to the extent it is a dispute, is about what counts as taking the position or declaring that the 60-day-clock is unconstitutional, versus merely muttering under one’s breath about it.
[12/17/15 – I have revised bits of this post for clarity-CS.]