Limiting the Power to Wage War

The nation's profound and still unfinished soul-searching for the lessons of Viet Nam last week produced one historic result. In a vote that overrode Richard Nixon's angry veto of the measure last month, both houses of Congress passed severe limitations on the power of U.S. Presidents to wage war without congressional assent. Barring any Supreme Court decision that it is unconstitutional, the new law will force future Commanders in Chief to win specific authorization from the Legislative Branch to engage U.S. troops in foreign combat for more than 90 days. In theory, at least, the war-powers resolution of 1973 reclaims for Congress some of the authority to commit the nation to battle that has been pre-empted by the Executive Branch almost since the beginning of the republic.

Under the new law, a President who orders troops into action abroad or "substantially" increases the number of foreign-based U.S. troops equipped for combat must report the reason for his action to Congress within 48 hours. Congress could then rescind his order at any time by passing resolutions, which are not subject to White House veto, in both houses. Even if such resolutions are not forthcoming, the President must halt the operation after 60 days unless it has been approved by Congress, though he could prolong it another 30 days by certifying that the additional time is necessary for the safe withdrawal of the troops.

New Low. The vote--284 for in the House v. 135 against; a more decisive 75 to 18 in the Senate--overrode a Nixon veto for the first time in 1973. Until this vote, Congress had failed to sustain its will over the President's on nine other measures this year. Political analysts were quick to read into the override a new low in Nixon's authority. While such a drop has undoubtedly occurred, a more important reason for this particular congressional victory was a far-reaching consensus, even among some of Nixon's supporters, that the sole branch of Government empowered by the Constitution to "declare" war must somehow gain control over the presidential power to wage undeclared wars.

Among both the law's defenders and its opponents, some highly unlikely political coalitions sprouted. Its sponsors in the Senate included New York's Jacob Javits, a highly vocal dove in Viet Nam's latter years, and Armed Services Committee Chairman John Stennis, an unabashed hawk. Both men agreed in this instance that Presidents Johnson and Nixon arrogantly evaded their responsibility to consult with Congress about Viet Nam. The measure's opponents included Vice President-designate Gerald Ford, who argued that it would damage the President's "credibility" in handling international crises like the current Middle East conflict. Also opposing: Liberal Democrat Thomas Eagleton, who offered the interesting thesis that the 90-day provision gives a President more rather than less war-making authority than he has always possessed under the Constitution, by permitting him to undertake military adventures for even that long.

In his veto message, Nixon had claimed that the bill is unconstitutional because it would "take away, by a mere legislative act, authorities which the President has properly exercised under the Constitution for almost 200 years." Proponents of that view contend that the President's constitutional designation as Commander in Chief and the foreign policy responsibilities assigned to him amply demonstrate that the founding fathers intended that the Chief Executive use decisive, independent military power when necessary. As a practical matter, Nixon continued, under the new law "we may well have been unable to respond" in the Cuban missile crisis of 1962, the Congo rescue operation in 1964 and other international crises that called for strong U.S. action. Moreover, he charged, the restrictions "give every future Congress the ability to handcuff every future President merely by doing nothing and sitting still," since the Chief Executive needs specific approval to continue operations past the 90-day mark.

Nixon failed to note that most of the specific "crises" to which he referred, including the current one in the Middle East, ended or substantially abated in well under 90 days. Congress could thus have influenced U.S. policy in them only by a direct vote ordering him to stand down--which is hardly sitting still. In an age of nuclear confrontation, all too much decisiveness can occur within 90 minutes, much less 90 days, and the war-powers resolution does not seem to diminish the President's necessary power to respond to superpower challenges. As for whether the measure might unwittingly extend presidential war powers, Javits convincingly argues in his recently published book, Who Makes War (TIME, Nov. 12), that the precedent for executive activism is well established in real life, whatever the strict constitutional limits.

Same Pressure. The main question, in fact, is whether the new war-powers law will prove to be any more effective than previous attempts to curb the military powers of what historians are coming to call the modern imperial presidency. In the Viet Nam War, Javits and others who opposed U.S. policy unhappily voted in favor of White House-sponsored appropriation bills and other practical measures that had the effect of continuing the fighting. They did so, Javits admits, because no patriotic American could in conscience vote to leave U.S. troops under fire without the weapons and supplies necessary to defend themselves. Legislative opponents of some future presidential intervention would undoubtedly feel some of the same pressure once U.S. fighting men had been committed, even for a few weeks, and conceivably could be railroaded into passing the required authorization by a President who skillfully used that argument.

Yet the resolve of Congress to reassert itself in foreign affairs by passing the law--as well as the law itself --may well prove to be a post-Viet Nam watershed. Observed House Majority Leader Thomas P. ("Tip") O'Neill: "If the President can deal with the Arabs, Israelis and the Soviet Union, he ought to be willing to deal with the Congress of the United States."

This file is automatically generated by a robot program, so reader's discretion is required.