A federal judge yesterday dismissed a suit filed by Democratic lawmakers to force the Reagan administration to comply with the 1973 War Powers Resolution in connection with its controversial tanker-escort operation in the Persian Gulf.
The suit is a "byproduct of political disputes within Congress" and thus beyond the reach of the judiciary, said Judge George H. Revercomb of the U.S. District Court for the District of Columbia in denying the lawmakers' bid for judicial intervention.
To rule on the issue would be to "impose a consensus on Congress" that it has not achieved on its own, Revercomb said.
Rep. Mike Lowry (D-Wash.), leader of 110 House Democrats who filed the suit last August, said the decision will be appealed in hopes of determining whether the war powers law "has any viability whatsoever" as an instrument of congressional constraint on a president's powers.
Under Revercomb's decision, the president would be free to "thumb his nose at Congress" by refusing to enforce the law and "Congress can do nothing" unless it can muster a two-thirds vote of both chambers to impose the law over his veto, Lowry said. "That is not, and cannot be, the law," he added.
Revercomb's ruling follows months of wrangling between Congress and the White House -- and within Congress -- over the applicability of the war powers law to the administration's decision last summer to reflag and escort 11 Kuwaiti tankers caught in the crossfire of the Iran-Iraq war in the Persian Gulf.
The Vietnam-era law, passed over President Richard M. Nixon's veto, requires the president to notify and consult Congress when U.S. armed forces are involved without a declaration of war in "hostilities or . . . situations where imminent involvement in hostilities is clearly indicated by the circumstances."
Troops must be withdrawn within 60 days -- or 90 days if the president requests an extension -- unless Congress acts in the meantime to authorize their deployment.
Like others before him, President Reagan has objected to the law as an encroachment on presidential powers. He has filed reports on the Persian Gulf operation but carefully drafted them in a manner to avoid triggering the law and its deadlines for congressional authorization.
As Revercomb noted in his opinion, Congress, sharply divided over both the law and the escort operation, has considered a variety of measures to prod Reagan into complying with the notification requirements but failed to act in any definitive way.
"Although styled as a dispute between the legislative and executive branches of government, this lawsuit evidences and indeed is a by-product of political disputes within Congress regarding the applicability of the War Powers Resolution to the Persian Gulf situation," Revercomb said.
Noting that legislation was introduced to repeal the law and strengthen it, along with measures aimed at forcing the president to comply with it, Revercomb concluded that the "plaintiff's dispute is primarily with their fellow legislators."
Congress, he continued, is "free to adopt a variety of positions on the War Powers Resolution, depending on its ability to achieve a political consensus." For the court to intervene in "this political process," he added, would be to exceed constitutional authority and to contravene the intention articulated by the late senator Jacob K. Javits (R-N.Y.), a principal drafter of the law.
But Lowry and his colleagues viewed the dispute differently, contending that the issue is whether a president can flout a law with impunity unless Congress can force him to act by enacting legislation by a two-thirds majority over his veto.
"What the court is saying, in effect, is that Congress must pass a law, despite a certain presidential veto, to enforce compliance with a law it already passed," said Rep. Peter A. DeFazio (D-Ore.). "That's absurd on the face of it."
In his ruling, Revercomb said judicial intervention would have been appropriate if Congress had acted to trigger the law and the president had then refused to comply with its requirements.
Lowry took issue with that, as well, saying the court had set up a "totally unreasonable standard for obtaining judicial review" by insisting that any dispute be between the president and a "unified Congress."
"This is nonsense," Lowry said. "Congress is an institution that represents the diversity of our country. It is by definition, therefore, divided rather than unified on virtually every important issue that comes before it."
Revercomb also expressed misgivings that intervention by the courts could "impact on statements by the executive that the United States is neutral in the Iran-Iraq war and, moreover, might create doubts in the international community regarding the resolve of the United States to adhere to this position."
Also, he said, for the court to order Reagan to trigger the law, it would have to decide whether U.S. forces are engaged in "hostilities" or "imminent involvement in hostilities." For the court to make such a determination would be both "inappropriate and imprudent" under the circumstances, Revercomb said.
Dismissing these and other reservations, Lowry said that Revercomb "simply does not want to make a decision."
An appeal, which aides said could go to the Supreme Court, is necessary to determine whether Congress should continue to rely on the law or attempt to revise it or "look for other ways to carry out our constitutional responsibilities," Lowry said.
Revercomb did not attempt to pass on the constitutionality of the War Powers Resolution, which Reagan has contended is unconstitutional. But he suggested that such a review would be proper if Congress passed a law to enforce the resolution. The court then would be acting on a "true confrontation between the executive and a unified Congress" and not "interjecting itself into legislative debate," he said.