The debate over whether Congress should "invoke" the War Powers Act over events in the Persian Gulf is bizarre, since, on its face, the War Powers Act requires no invoking. Under this 1973 law, the president is supposed to consult with Congress before or, if necessary, immediately after placing American troops into actual or imminent "hostilities." If Congress doesn't authorize the military action within 60 days (with a 30-day extension), the troops are supposed to be withdrawn.
The trouble is that President Reagan has defied this law. Congressional leaders weren't informed about the invasion of Grenada, until long after the planning had begun. Even after 241 American soldiers died in the Beirut barracks bombing, the administration insisted that no "hostilities" were going on in Lebanon. Ditto about the Gulf today, even as American seamen qualify for combat pay. For good measure, the administration insists that the War Powers Act is an unconstitutional infringement on the president's authority to make foreign policy.
This bold constitutional claim comes from the same administration that campaigns for its Supreme Court nominee on the grounds that we must stop using the Constitution to thwart the majority will as expressed through its elected representatives. The War Powers Act is just such an expression of democracy, like all laws. But it is more: it is a law specifically designed to make decisions about war and peace more democratic.
The constitutional question is not whether Congress should "micro-manage" foreign policy. It is whether Congress may share in one of the most important decisions any society makes: when to go to war. The president has up to 90 days to pick a fight and make his case. The modest assertion of the War Powers Act is that, at some point, he must get the approval of the other elected branch.
Let's talk "original intent." The notion that the president can make war despite the specific objection of Congress would startle the Framers. The Constitution doesn't address the issue directly. It gives the president certain specific foreign-policy powers (appointing ambassadors, acting as commander in chief) and gives other specific powers to Congress (appropri-ating military funds, declaring war). From these sparse threads, conservative constitutional activists weave a doctrine that the president's foreign-policy powers are virtually dictatorial.
The Framers at first gave Congress the power to "make war." This was changed to "declare war" in order to preserve the president's ability to respond to a surprise attack. But constitutional provisions should not be construed to be meaningless. "Declare war" must mean more than a congressman's sacred right to make a pompous speech.
Congress has only declared war five times in our history, whereas by one count there have been more than 200 episodes of military hostility. Over the decades, presidents got fancier and fancier ideas of what they were free to do without specific congressional authorization. The idea of the War Powers Act was to reassert Congress' authority.
Supreme Court rulings in this area are sparse. The leading bit of doctrine is Justice Robert Jackson's concurring opinion in the 1952 case (Youngstown Sheet & Tube ) about President Truman's attempt to nationalize steel mills during the Korean War. Jackson makes the reasonable point that, in areas of shared power, the president surely has less authority to act against the express will of Congress than he does if Congress hasn't ruled at all.
Executive-power freaks prefer to cite a 1936 case that had nice things to say about the president's special role in foreign policy. Constitutional scholar Oliver North, for example, quoted these passages in his congressional testimony last summer. But in that case, concerning arms sales abroad, Congress and the president were in agreement. The constitutional question was whether the legislature went too far in delegating its own authority to the executive.
If the modest claims of the War Powers Act are excessive, what role is left to Congress in foreign policy? There is still the power of the purse. But that is what the Boland Amendment -- which attempted to cut off funds for the contras -- was about, and many conservatives argue that it too was unconstitutional. Congress, they say, cannot use its appropriation power to dictate specific policies and certainly cannot prevent the president from raising war money from foreign governments. Check and mate.
Arguably, a real role in war-and-peace decisions would force Congress to take America's military responsibilities more seriously. But there's no use denying that the practical effect will be to make it harder, not easier, to fight. Five hundred thirty-five members of Congress inevitably will be slower than one isolated commander in chief to conclude that a foreign-policy objective is worth the shedding of blood. That's not a disadvantage of the War Powers Act. That's the whole idea.