Who Has the Power to Put US Troops in Harm's Way?
THE WAR POWERS RESOLUTION
THERE are many troubling aspects to the current Bosnian venture, but the most disappointing has been President Clinton's failure to guide the nation back toward sound constitutional practice. By insisting that he did not need congressional approval to enforce the Dayton Agreement, he has reinforced the dangerous and accumulating precedents around the presidential exercise of war powers.Skip to next paragraph
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Beginning with Korea, through Vietnam, and on to Grenada, Libya, Panama, and the Persian Gulf, presidents have taken the nation to war on their own authority. Sometimes, as with the Tonkin Gulf resolution, Congress has delegated its own powers. Other times, as with the 1991 Gulf war, it has belatedly acquiesced. What Congress has not done is meet its responsibility to act jointly with the president in determining how troops will be used.
The pattern in the current case has been typical. The president determines what United States security interests and ideals require. Congress grumbles, passes resolutions reminding the president that he cannot send troops without its approval, but fails in the end to cut off funds. Congress is driven to consider such drastic action because the president failed to insist on its approval.
Obviously, Mr. Clinton refused to admit he needed congressional approval because he feared he could not get it. This, in turn, encouraged Congress to behave irresponsibly. Both chose to serve immediate strategic objectives, rather than do the hard work of governance in accordance with constitutional norms.
Clinton is not alone in asserting the doctrine that he can act without Congress. A news story on the front page of The New York Times declared, ''President Clinton does not need the approval of Congress to send troops to the Balkans....'' Cokie Roberts, on National Public Radio, dismissed constitutional questions with a similar flourish.
What ground is there for this impatience? The Constitution says the president is commander-in-chief of the armed forces. Alexander Hamilton, answering criticism that this power might enable a president to take the nation to war, insisted that the president was merely the supreme military commander. The Constitution reserved for Congress the power to decide whether and where the nation should declare war.
Perhaps those who ascribe warmaking power to the president are referring to the War Powers Resolution. Passed in 1973 (over President Nixon's veto), the WPR directs the president to ''consult with Congress'' in every possible case, before sending armed forces into potentially hostile situations. He may then send the forces in, but only for 60 days. If Congress does not, by then, explicitly affirm the commitment, the president must withdraw the troops within an additional 30 days.
Presidents since 1973 have uniformly held that the WPR is unconstitutional, because it attempts to regulate a president's constitutional powers by a mere statute. But the Bosnia situation reveals another respect in which the WPR sets forth unconstitutional standards.
The resolution represents itself as an attempt to clarify the meaning of the Constitution. It says explicitly that it gives no new power that is not already included in the Constitution. By what authority, then, does it allow presidents to send troops into harm's way even for 60 days, without congressional affirmation?