Increasing tensions in the Persian Gulf have brought new demands in Congress that President Reagan invoke the War Powers Act. And that is restoking the fires of controversy over the appropriateness and constitutionality of the virtually unused law. The 14-year-old statute requires the President to notify Congress formally within 48 hours of the time that US forces are introduced into a region where hostilities appear imminent. The troops must come home within 90 days, unless Congress votes to keep them there, or declares war.
Problems begin, however, when one sets out to determine the meaning of the term ``imminent hostilities.'' Mr. Reagan says hostilities are not imminent in the Gulf, where United States Navy vessels are escorting Kuwaiti tankers flying the American flag. Therefore, though the administration did brief congressional leaders before the start of its reflagging-and-escorting operation, the President has concluded that he does not need to notify Congress under the terms of the act.
A growing number of lawmakers, Democrat and Republican, take exception to that view. They argue that US forces in the Gulf are in very imminent danger of being drawn into a conflict. ``The Gulf is a dangerous place,'' says Sen. Dale Bumpers (D) of Arkansas. ``You're not dealing with rational people when you're dealing with a place where the Iranians are holding forth.''
The resulting struggle between Congress and White House over policy in the region could blow up into a full-fledged confrontation between the branches. Last week, more than 100 Democratic representatives filed a lawsuit against the President, asking that a federal court order him to observe the terms of the act and officially notify Congress that US forces were in an area of imminent hostilities.
Rep. Mike Lowry (D) of Washington, the chief sponsor of the effort, says the suit is designed to put pressure on the administration to end its policy of protecting Kuwaiti ships in the Gulf. If the court rules that the War Powers Act does not apply, Representative Lowry says the group will ask the court to declare the administration's reflagging operation null and void.
But the court case is likely to take months to settle. Meanwhile, the effort seems likely to stir up the debate over the constitutionality of the War Powers Act itself.
The act has been controversial since it was enacted over President Nixon's veto in 1973 by a Congress frustrated by its inability to end US involvement in the Vietnam war. Presidents and legal scholars alike have questioned the act, charging that it infringes on a president's constitutional mandate as commander-in-chief of the US armed forces.
The law's supporters, however, have countered by arguing that the act is in accord with Congress's constitutional prerogative to declare war.
In 1983, another challenge to the law's constitutionality arose when the Supreme Court struck down the so-called legislative veto, a device used by Congress to block action by the executive branch. A legislative veto is at the heart of the War Powers Act - the act stipulates that Congress can, in effect, order troops home. Thus, many constitutional scholars say they believe at least part of the act would be struck down in a court case.
So far, the act has not been tested in court. Nor has a president invoked it before US involvement in a crisis: President Reagan, for example, said the act did not apply when US military advisers were sent to El Salvador, when US marines were introduced into Lebanon, when US forces invaded Grenada, or when the US launched an air strike against Libya.
But the Gulf initiative may be different. Some administration supporters say the pending court case might become the first court test of the act's constitutionality - a test, they think, the act will fail. ``I think the court case could backfire on people who are bringing it,'' says House minority whip Dick Cheney (R) of Wyoming.
At the same time, the US forces deployed in the Gulf could find themselves embroiled in the sort of hostilities to which the act undeniably refers. Says Sen. John Kerry (D) of Massachusetts: ``If worse came to worst, you would see a groundswell of support for the invocation of War Powers.''