War Powers in the 21st Century:  The Constitutional Perspective

Testimony of Michael J. Glennon

Professor of International Law

Fletcher School of Law & Diplomacy

Tufts University

before the

House Committee on Foreign Affairs, Subcommittee on International Organizations, Human Rights, and Oversight

United States House of Representatives

Washington, DC

April 10, 2008

 

 

            Mr. Chairman and Members of the Subcommittee, thank you for inviting me to testify today on the War Powers Resolution and related issues.

 

            My views can be quick summarized.  I believe that the War Powers Resolution is, except for its legislative veto, constitutional in its entirety; that it has not worked; that the reasons that it has not worked can be identified; and that it can be fixed and made to operate effectively.  Most of the amendments proposed by H.J. Res. 53, 110th Cong., 1st sess. (2007), introduced by Rep. Walter Jones, would be salutary, although I in general prefer the changes proposed in a similar bill, S. 2387, 105th Cong., 2nd sess. (1998), introduced by Sen. Joseph Biden.  Rather than attempting any fix, however, it may be time for Congress to consider another completely different approach, which relies upon the House’s and Senate’s own plenary rule-making power, which cannot be vetoed by a President, and which will permit the effective exercise of Congress’s exclusive power over the purse ― which has in recent months proven unwieldy as a check on the Executive’s war power.  Finally, I would counsel the Subcommittee to focus purposefully upon the most important war powers issue of the day, which is that the war in Iraq is currently being prosecuted without adequate statutory authorization.

 

            An elaboration follows.

 

Constitutionality of the War Powers Resolution

 

It is commonly asserted that all Presidents have challenged its constitutionality of the War Powers Resolution. It is true that, before the legislative veto was invalidated by Immigration and Naturalization Service v. Chadha,  462 U.S. 919 (1983), all modern presidents objected to all legislative vetoes on constitutional grounds, including the War Powers Resolution’s legislative veto.  However, to the extent that that assertion relates to the Resolution’s core restraint, the 60-day time period, it is wrong. Presidents Carter, Ford and Clinton did not challenge the time period.  The State Department Legal Adviser during the Carter administration, Herbert Hansell, testified before the Senate Foreign Relations Committee in 1977 that the administration would "not challenge" the validity of the Resolution. War Powers Resolution: Hearings Before the Senate Comm. on Foreign Relations, 95th Cong. 207 (1977) (statement of Herbert J. Hansell, Legal Adviser, U.S. Dept. of State). The Carter Justice Department, which asked for an opinion on the validity of the Resolution's 60-day time period, said: "The practical effect of the 60-day limit is to shift the burden to the President to convince the Congress of the continuing need for the use of our armed forces abroad. We cannot say that placing that burden on the President unconstitutionally intrudes upon his executive powers." Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization, 4A Op. Off. Legal Counsel 185, 196 (1980).  As for President Ford, although he filed the required reports following the Mayaguez incident and during the evacuations of Phnom Pen and Saigon, the President apparently has come to doubt the Resolution's validity after he left office. See generally Michael J. Glennon, Constitutional Diplomacy 93-96 (1990). President Clinton never challenged the constitutionality of the time period, although he was the only President to introduce the armed forces into hostilities for longer than 60 days (while bombing Kosovo).  Clinton claimed ― wrongly, in my view ― that he did so pursuant to statutory authorization.

 

The claim that the Resolution is unconstitutional is directed primarily at three provisions of the Resolution: the 60-day time period of section 5(b), the legislative veto of section 5(c), and the clear statement rule of section 8(a)(a)(1).  I will address each in turn.

 

The 60-day time limit (§5(b))

 

Easily the most controversial provision of the Resolution is the 60-day time limit.  Some commentators content that it impinges upon “independent” power conferred upon the President by the Constitution.  What this claim overlooks is that there exists a second category of presidential power that is subject to congressional regulation: concurrent power. This is constitutional power that may be exercised initially by the President in the face of congressional silence, but which Congress may nonetheless subsequently choose to restrict.

 

It is this class of power to which Justice Jackson referred in his famous concurring opinion in the 1952 Steel Seizure Case. That case presented the Supreme Court with a stark choice. A nation-wide strike had broken out in the steel industry. According to the Youngstown court:

 

The indispensability of steel as a component of substantially all weapons and other war materials led the President to believe that the proposed work stoppage would immediately jeopardize our national defense and that governmental seizure of the steel mills was necessary in order to assure the continued availability of steel. The Steel Seizure Case, 343 U.S. at 583 (1952).

 

 

President Harry S. Truman consequently issued an executive order directing the Secretary of Commerce to take possession of most of the mills and keep them running, arguing that the President had “inherent power” to do so. The companies objected, complaining in court that the seizure was not authorized by the Constitution or by any statute.

 

Congress had not statutorily authorized the seizure, either before or after it occurred. Congress had, however, enacted three statutes providing for governmental seizure of the mills in certain specifically prescribed situations, but the Administration never claimed that any of these conditions had existed prior to its action. More important, Congress had in fact, considered, and rejected authorization for the sort of seizure Truman actually ordered.

 

Justice Hugo Black delivered the opinion of the Court. The President, Justice Black wrote, had engaged in law-making, a task assigned by the Constitution to Congress. The seizure was therefore unlawful, since the “President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.” Yet Youngstown is remembered mostly for the concurring opinion of Justice Robert Jackson. Jackson wrote that “[p]residential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” Because of the importance of Jackson’s opinion, key portions are set forth without paraphrase:

 

Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.

 

  1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth), to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually mans that the Federal Government as an undivided whole lack power. A seizure execute by the President pursuant to an Act of Congress would be supported by the strongest of p[resumptions and the widest latitude of judicial interpretation and the burden of persuasion would rest heavily upon any who might attack it.
  2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers. But there is a zone of twilight in which he and Congress may have concurrent authority, on in which his distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test or of power is likely to depend on the imperatives of the events and contemporary imponderables rather than on abstract theories of law.
  3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers of Congress over the matter.  Court can sustain exclusive Presidential claim to be power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

 

The opinion is thus notable for its unwillingness to decide the case by reference to “independent” presidential power, and in the weight it accords congressional will. It remained for a former Jackson clerk, Justice William Rehnquist, to give Jackson’s opinion the force of law. The Supreme Court formally adapted this mode of analysis in Dames & Moore v. Regan, 453 U.S. 654 (1981), in which Justice William Rehnquist applied Jackson’s approach to uphold President Jimmy carter’s Iranian hostage settlement agreement as having been authorized by Congress.  In so doing, Rehnquist wrote that Jackson’s opinion “brings together as much combination of analysis and common sense as there is in this area.”  Rehnquist then quoted from Jackson’s opinion a passage that, today, is as significant as it is timely. He said: “The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image.”

           

This, then, is the mode of analysis pursued by the United State Supreme Court in the assessing the reach of presidential foreign affairs power. It bears repeating: “Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” “When the President takes measures incompatible with the expressed or implied will of congress, hi power is at its lowest ebb…” The Steel Seizure Case, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring).

 

The War Powers resolution placed certain presidential use of armed forces in third category of Justice Jackson’s analysis, where his power is at its lowest ebb.  Under this analytical approach, the time limits of the War Powers Resolution, as well as the “prior restraints” set forth in the earlier Senate version, seem clearly constitutional. The scope of the President’s concurrent power is the function of the concurrence or non-concurrence of the Congress; once Congress acts, its negative provides “the rule for the case.”(12) That analytical framework provides a general foundation for the Resolution’s mandate of consultation and reporting as well as the time limit imposed upon the use of force abroad—all of which, in the absence of a statement by the Congress, might fall within a “zone of twilight.”  This was Corwin’s analysis, too: “Clearly such legislation did not require a consultation amendment, since it only spells out how a power already granted to Congress is to be exercised… [O]n the basis of the precedent of the Steel Seizure case… it is probable that the Court would uphold the act of Congress.”  E. Corwin, The Constitution and What It Means Today 110 (H. Chase & C. Ducat, eds., 14th ed., 1978).

 

In an important but largely unnoticed opinion of the Carter Justice Department, noted earlier, the Office of the Legal Counsel agreed:

 

            We believe that Congress may, as a general constitutional matter, place a 60-day limit on the use of our armed forces as required by the provisions of [section 5(b)] of the Resolution. The Resolution gives the President the flexibility to extend that deadline for up to 30 days in cases of “unavoidable military necessity.” This flexibility is, we believe, sufficient under any scenarios we can hypothesize to preserve his constitutional function as Commander-in-Chief.  The practical effect of the 60-day limit is to shift the burden to the President to convince the Congress of the continuing need for the use of our armed forces abroad. We cannot say that placing that burden on the President unconstitutionally intrudes upon his executive powers.

 

Finally, Congress can regulate the President’s exercise of his inherent powers by imposing limits by statute. Presidential Power to Use the Armed Forces Abroad without Statutory Authorization. 4A OP. OFFICE OF THE LEGAL COUNSEL,DEPARTMENT OF JUSTICE 185, 196 (1980).

 

I believe that the Justice Department was correct: the 60-day time period is constitutional.

 

 

 

The legislative veto (§5(c))

 

The so-called “Presentation Clause,” however, does cause problems. Section 5 (c) of the Resolution, allowing Congress by concurrent resolution to force the President to withdraw the armed forces from hostilities, is in my opinionclearly invalid after the Supreme Court’s decision in Chadha.  The Court there found that Presentation Clause requirements must be met whenever legislative action has the “purpose and effect of altering the legal rights, duties, and relations of persons, including the…Executive Branch…outside the legislative branch.”  Adoption of a concurrent resolution under section 5(c) would have the purpose and effect of altering the rights and duties of the President. Justice White, in dissent, was doubtless correct in reading the majority opinion as invalidating the legislative veto in the War Powers Resolution.

 

            To be sure, arguments can be made to the contrary, but none is persuasive. It might be argued, for example, that the legislative veto contained in section 5 (c) of the war Powers Resolution is distinguishable from that in Chadha in that the latter pertained to the exercise of statutorily delegated power, whereas, in the case of the War Powers Resolution (and, arguably, the Impoundment Control Act[i] as well), the legislative veto in question applies to the exercise of a power that derives entirely from the Constitution. This argument, however, proves too much and only fortifies the conclusion that Chadha applies to the War Powers Resolution: if Congress is unable to attempt the “string” of a legislative veto to a statutorily delegated power, surely it is on far weaker ground when it attempts to do so in connection with a power not delegated by it but conferred by the Constitution.

 

            A broader argument against the application of Chadha is that it would be inconsistent with previous cases that affirm the power of Congress to express its will in other contexts without adhering to the requirements of the Presentation Clause. In the Steel Seizure Case, for example, the Court found that Congress had expressed its opposition to presidential seizure of the steel mills by rejecting an amendment that would have authorized that seizure; the President never had the opportunity to veto the congressional rejection of that amendment since it was not contained in the legislation presented to him.  Similarly, in Dames & Moore v. Regan, 453 U.S. 654 (1981), the court inferred congressional approval of the Iranian claims Settlement Agreement from the failure of Congress to disapprove.

 

            In each case, the courts necessarily reasoned that “the legal rights, duties and relations of persons . . . outside the legislative branch” were affected by congressional action accomplished without strict adherence to Presentation Clause procedures.  Yet there is no suggestion in Chadha that the court intended to overrule either case or to limit the power of congress to so express its will.  Although the court disapproves of a “binding” expression of congressional opinion through simple or concurrent resolution and will give such expression no legal effect, it seems willing to infer congressional intent from sources far less precise.(30)  Accordingly, whereas a concurrent resolution adopted under section 5(c) can have no mandatory effect in requiring presidential withdrawal of the armed forces, such a resolution could nonetheless suffice under Justice Jackson’s analysis to place the President’s power at its lowest ebb.  Indeed, it is hard to see why a concurrent resolution adopted without reference to the War Powers Resolution should not be accorded such effect.

 

The “clear statement” rule (§8(a)(1))

 

            Section 8(a)(1) was adopted virtually verbatim from paragraph (4) of section 3 of the Senate-passed version of the Resolution, S. 440, 93rd Cong., 1st Sess. (1973).  (The House bill contained no comparable provision.)  Its meaning and purpose were explained in the report of the Senate Foreign Relations Committee on the bill.  The Committee said as follows:

 

The purpose of this clause is to counteract the opinion in the Orlando v. Laird decision of the Second Circuit Court holding that passage of defense appropriation bills, and extension of the Selective Service Act, could be construed as implied Congressional authorization for the Vietnam war.

           

S. Rep. 93-220 at 25 (1973).  In Orlando, the court had rejected the argument that authorization to use force in Vietnam could not properly be inferred from “military appropriations or other war-implementing legislation that does not contain an express and explicit authorization for the making of war by the President.”  443 F.2d at 1043. 

 

            The case for the constitutionality of section 8(a)(1) is simply put.  A law enacted by Congress is presumed to be constitutional.  The burden of persuasion falls upon one who challenges a statute’s constitutionality.  The argument challenging the constitutionality of section 8(a)(1) (which may also extend to section 8(a)(2), concerning treaties) seems to be a two-pronged contention,

roughly as follows: 

               

            1. One Congress cannot bind a later Congress; legislative acts must be alterable when the legislature chooses to alter them.  One legislature is competent to repeal any law which a former legislature was competent to pass.  New legislators cannot be bound by policies of earlier days.  New legislators have a right to repeal by inference preexisting laws; the latest expression of the legislative will must prevail.  Therefore, Congress remains free to authorize use of force implicitly, the words of section 8(a)(1) notwithstanding.

 

            2. Use of force may be authorized constitutionally by appropriations statutes and other laws implicitly or indirectly facilitating that use.  Therefore, section 8(a)(1) would take from Congress a constitutionally permissible method of authorizing war. 

 

                Each argument is easily answered.  Although their premises are correct, their conclusions simply do not follow.

 

                The first argument mistakes the premises that it posits with a very different implicit premise—that section 8(a)(1) is somehow “unrepealable.”  Obviously it is not.  Any time Congress wishes to repeal section 8(a)(1) it can do so.  It can do so, moreover, using precisely the same procedure applicable to the repeal of any other statute.  The Congress that enacted section 8(a)(1) thus did not in this sense “bind” later Congresses, for later Congresses retain full discretion to alter that section if and when they choose to alter it.  Any Congress wishing to authorize use of force implicitly can easily do so: it can either repeal section 8(a)(1) at the same time it enacts such implicit authorization, or it can simply provide by law that section 8(a)(1) does not apply to the legislation in question.

 

            What this first challenge to section 8(a)(1) neglects to note is that the so-called “last-in-time doctrine” is not mandated or created by the Constitution.  The doctrine is simply a canon of construction—a judicially-invented guideline for “finding” the will of Congress where that will is in doubt, i.e., in the event two statutes conflict.  The courts simply assume, quite reasonably, that Congress probably intended the latter.  But that assumption is always rebuttable.  If the evidence is clear that Congress intended the former, the first in time will prevail, the object being, again, simply to give effect to the will of Congress.  Like other canons of construction, the last-in-time doctrine therefore can be countermanded by Congress, which may intend that its intent be gleaned using a different canon of construction.  (Legislatures regularly adopt their own canons of construction.   State criminal codes, for example, typically subject all provisions to a canon that requires that their provisions be construed narrowly.)  Section 8(a)(1) simply sets forth a canon of construction.  That canon provides that, in specified circumstances, the intent of Congress should be gleaned not through application of the last-in-time doctrine, but through application of a first-in-time principle.  There is no constitutional reason why the last in time must control if Congress indicates otherwise in a legislatively-prescribed non-supersession canon, nor is there any reason why Congress must leave its intent to be guessed at by the Executive or the courts.

 

            The second argument proceeds from a similar presupposition of unalterability with respect to section 8(a)(1).  But that presupposition is unfounded.  Congress has not disabled itself from exercising its right to authorize hostilities through the enactment of appropriations legislation if it wishes to do so.  Indeed, section 8(a)(1) places appropriations laws on a footing no different from general legislation.  Either method may be used if Congress chooses to do so.  Each, however, is subject to the canon of construction set out in section 8(a)(1).   If Congress wishes to use appropriations legislation to authorize use of force, no impediment precludes it from doing that.  The effect of section 8(a)(1) is simply to make clear the congressional intent that such authorization not be inferred unless Congress clearly intended to grant it.  There is nothing novel in such a canon, which has, indeed, been used by Congress in other contexts in the realm of foreign relations.   See, e.g., § 15 of the Act of Aug. 1, 1956, as amended, Pub. L. No. 84-885, 70 Stat. 890 (codified at 22 U.S.C. § 2680(a)(1)(b)), which prohibits appropriations not authorized by law to be made to the Department of State and precludes nonspecific supersession of that prohibition.

 

            If these two objections were correct, Congress, in enacting the War Powers Resolution, wrote empty words: whatever the constitutional validity of the 60-day time limit, that requirement will virtually never apply because Congress will almost always be deemed to have enacted some implicit authorization contemplated by the Resolution.  The objections proceed on the assumption that a disclaimer of authority cannot simply be stated once, but must be reiterated in every single piece of legislation from which authority might conceivably be inferred.  Yet Congress, in enacting legislation, is deemed to be on notice as to what laws already exist; its intent is considered to embrace all acts in pari materia.  Section 8(a)(1) is in effect a statement by Congress that it wants the non-supersession canon to apply to every piece of authorizing and appropriating legislation insofar as that legislation might be read as approving the introduction of the armed forces into hostilities.

 

            Section 8(a)(1) serves a critically important purpose.  It ensures that the decision whether to authorize armed force—the most significant decision Congress can make—will not be misinterpreted.  Action that momentous calls for decisional clarity.  That is all that section 8(a)(1) requires.  Its enactment represented a triumph of congressional responsibility, and its validity ought not be doubted.

 

Flaws in the War Powers Resolution

 

There are many problems with the War Powers Resolution and a comprehensive discussion would be too lengthy for the time here available.  Suffice it to list the two major ones.  The first and most serious problem with the Resolution from a seemingly minor drafting error, unnoticed at the time the resolution was enacted, that turned out to be fatal to its proper operation.  The intent of its sponsors had been to require the President, upon introducing the armed forces into hostilities, to transmit to Congress a written report on that action within 48 hours.  He would then have 60 days to keep them in hostilities.

 

The problem results, however, from the failure of the resolution to require the President to specify which kind of report he is filing.  A “hostilities” report is only one of three different kinds of reports required by the resolution, and the other two do not set the clock ticking.  The latter two requirements apply in situations that could also require a “hostilities” report, that is, when forces are introduced “into the territory, airspace or waters of a foreign nation, while equipped for combat,” and when forces are introduced “in numbers which substantially enlarge United States armed forces equipped for combat already located in a foreign nation.”

 

The result is that Congress has found itself required to “trigger” the60-day limit of the Resolution through the enactment of legislation, over the President’s veto.  Even if those efforts at triggering the been successful, the very act of engaging in them amounted to an implicit admission that the resolution had failed.  The central objective of the Resolution had been to put into place a self-activating mechanism to control abuse of presidential discretion in the event Congress lacked the backbone to do so, as the sponsors believed had happened during the Indochinese War.  Thus, in 1973 the 60-day time period had seemed to have the advantage of shifting to the White House the burden of justifying military actions by requiring their termination ― automatically ― despite congressional inaction.  But these expectations proved unfounded.  The element of "automaticity," as Senator Jacob Javits earlier had liked to refer to it, was grounded entirely upon the foundation of a written "hostilities" report submitted by the President.  In the absence of such a report -- and in the absence of the Executive's good faith adherence to the spirit of the resolution, which the sponsors also had mistakenly expected  ― the whole procedural edifice turned out to be a house of cards.

The second most serious problem is that it has turned out to be judicially unenforceable.  Courts have declined to enforce it primarily because doing so would, they have concluded, constitute a political question. In 1983, for example, in Crockett v. Reagan, the United States Court of Appeals for the District of Columbia Circuit affirmed the holding of a federal district court that the question whether a report is required to be submitted under section 4(a)(1) of the resolution is, at least with respect to combat activities in El Salvador, a political question.  Crockett v. Reagan, 720 F.2d 1355 (D.C. Cir. 1983), aff'g 558 F.Supp. 893 (1982). That court reached the same result in a case that I litigated with Alan Morrison, Lowry v. Reagan, 676 F. Supp. 333(D.D.C., 1987), in which we represented 145 members of Congress in challenging  the Reagan Administration’s failure to submit such a report in connection with the Kuwaiti tanker escort operation.  Rep. Tom Campbell confronted the same impediment in challenging the Clinton Administration’s violation of the 60-day time period in the 1999 military actions concerning Kosovo.

 

Proposed improvements

 

            In 1988 the Senate Foreign Relations Committee established a Special Subcommittee on War Powers, which I was privileged to serve as Special Counsel.  The Subcommittee held extensive hearings on the Resolution’s operation and effectiveness.  It issued no final report, but its Chairman, Senator Joseph Biden, did introduce a bill that came out of those hearings.  That bill was introduced most recently as S. 2387, 105th Cong., 2nd Sess. (1998).  It sets out my own views as to how the Resolution should be strengthened.  It would, among other things, fundamentally alter the conceptual scheme of the War Powers Resolution by authorizing the use of force in certain narrowly defined circumstances.  The effect of authorization ― as opposed to the War Powers Resolution’s approach of limitation ― would be to bring the new Resolution’s constraints within the ambit of early war powers cases decided by the Marshall Court that held that the President is bound to respect congressionally imposed limits when Congress authorizes the use of force.

 

            Sen. Biden’s bill would also, among other things, fix the reporting requirement and direct that the courts not to dismiss such a case as presenting a political question to the extent that that is constitutionally permissible.  There appears to be authority for the proposition that that application doctrine may, at least in some circumstances, be circumscribed by law.  In Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964), the Supreme Court made clear that the courts of the United States will not sit in judgment on acts of state of a foreign government that apply within that government’s own territory.  The origins of the doctrine were clarified in 1972 in First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972), in which a four-justice plurality of the Court found that “the validity of a foreign act of state in certain circumstances is a political question not cognizable in our courts.”  The Sabbatino judgment was overruled in part by Congress in the “second Hickenlooper Amendment” ― which was applied by the Sabbatino district court on remand, where the complaint was dismissed.  The United States Supreme Court denied a petition for a writ of certiorari.  390 U.S.956 (1968).  If the political question doctrine was not subject to statutory restriction, the Court would seemingly have taken that opportunity to say so.

 

Senator Biden’s bill would, finally, cut off funds for prohibited uses of force and would establish a point-of-order procedure to implement that cutoff.

 

            Rep. Jones’s bill, S. 2387, 105th Cong., 2nd sess. (1998), would also seemingly alter the conceptual framework of the Resolution, but the wording in this respect is not entirely clear.  His bill would not prohibit a court from relying upon the political question doctrine to dismiss an enforcement action.  It would impose a funding cutoff but it would not enforce that cutoff with a point of order.

 

            One principal point of difference between the two bills lies in the Jones bill’s establishment of an “Executive-Legislative Consultative Group,” which would consist of the President, senior executive branch officials, and six top Senate and House leaders.  I believe that the establishment of such a group, as so structured, would be ill-advised.  Such a committee could be vulnerable to processes of psychological distortion that band both facts and analysis.  These problems can prove debilitating to groups charged with decision-making in the cloistered, high-security environment necessitated by the sensitive subject matter.  One is “irrational consistency,” the tendency of decision-makers to ground conclusions upon previously formed images of reality, resulting in cognitive dissonance that causes a selective processing of information to conform to those presuppositions.  Another is “defensive avoidance,” an effort of decision-makers to reduce the stress that derives from uncertainty by unconsciously exaggerating the attractiveness of one or more options, thus denying responsibility for making the wrong choice.  A third is “groupthink,”  phenomena of group dynamics that chill a full discussion of all alternatives open to highly cohesive groups constrained by unarticulated premises of loyalty and consistency. 

 

            Two measures can be taken to counter these tendencies, but the Jones bill does not incorporate them.  First, access to information must be continuous and complete.  Members of the group ought not have a sense of having “walked in off the street” only to be confronted by monumental questions never before contemplated.  Given the historic disinclination of the Executive to share information with Congress, it would seem unduly optimistic to think that such a group would ever have access to all the information necessary to make a balanced, informed judgment in a crisis.  The likelihood is great that the key decisions would continue to be made in the closed quarters of the Executive Branch, by the usual actors, without congressional participation.

 

            Second, a highly qualified professional staff can diminish the effects of psychological distortion, but only under certain conditions.  They too must have complete and continuous access to all pertinent information.  They must be present at all meetings to analyze and answer arguments of executive experts.  They must be able to travel instantly to trouble spots, sometimes under unsafe conditions.  Most important, they must be skeptics, doubters, unbelievers ― persons of independent judgment willing to say no, able to acknowledge uncertainty, and able to resist pressures for consensus.  The Jones bill does not provide for continuously serving staff who are continuously within the pertinent, classified informational stream ― or, for that matter, for any staff.  The role, presence and ability of staff would be uncertain.

 

An Alternative:  A Point-of-Order Procedure to Enforce Funding Cutoffs

 

            One alternative to the broad approach of the War Powers Resolution would be patterned on section 106 (b) of Senator Biden’s bill.  That section would cut off funds for a given use of force if Congress were to adopt a concurrent resolution that contains a finding that ―

 

(1) a use of force abroad has exceeded the 60-day time period;

(2) the President has acted outside the authority to use force that was conferred by Congress; or

(3) a use of force is otherwise conducted in a manner inconsistent with the provisions of the Act.

 

Once such a concurrent resolution is adopted, a point of order will lie in each House against any measure that contains budget authority to carry out the use of force in question.  That will preclude any further consideration of the measure in question until the budget authority is removed.

 

            This is, in my mind, a clean, simple, and effective way for Congress to employ its ultimate check, the power over the purse, to curb unwanted use of force by the President.  It is clearly constitutional in that it relies upon the plenary power of each House to set its own rules of procedure.  It can be put in place with a concurrent resolution that cannot be vetoed.  If Congress is serious about reclaiming the war power, this might be a good place to start.

 

The proposed procedure, while novel, is not entirely new.  On May 15, 1978, the Senate Foreign Relations Committee reported a measure (section 502 of S. 3076, 95th Cong., 2nd Sess. (1978)) that would have subjected an unauthorized agreement to a point-of-order procedure that would have cut off funds for the implementation of the agreement in question, but the measure was rejected by the full Senate.  (Section 502 incorporated the “Treaty Powers Resolution,” S. Res. 24, 95th Cong., 2nd Sess. (1978)).  The same measure, sponsored by Senators Clark, Church, Kennedy and Mondale, had been introduced in 1976 as S. Res. 486, 94th, Cong., 2nd Sess. (1976).  Hearings on the proposal were held on the measure by the Senate Foreign Relations Committee on July 21 and July 28, 1976.

 

 

 

The Legal Status of Hostilities in Iraq

 

            I would be remiss, Mr. Chairman, if I were to conclude without mention of the most significant war powers issue facing the Congress today.  That is the legal status of hostilities in Iraq. 

 

The Administration has cited a number of potential sources of authority for use of force in Iraq.  In a February 13, 2008 opinion piece in the Washington Post, Secretary of State Condoleezza Rice and Secretary of Defense Robert Gates wrote that the new security arrangement with Iraq would include a provision that, in their words, confers “authority to fight.”  In a March 5, 2008 letter to Rep. Gary Ackerman, Jeffrey T. Bergner, Assistant Secretary for Legislative Affairs of the Department of State, transmitted a paper from Ambassador David M. Satterfield, dated March 4, 2008, responding to Rep. Ackerman’s question whether the Administration believes it has constitutional authority to continue combat operations in Iraq beyond the end of this year absent explicit additional authorization from Congress.  He answered in the affirmative.  The President’s authority, Ambassador Satterfield wrote, would derive from four sources:

 

(1) his constitutional authority as commander-in-chief;

(2) the Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq, P. L. 107-243, enacted October 2, 2002;

(3) the Authority for Use of Military Force (AUMF), P.L. 107-40, enacted September 18, 2001; and

(4) the fact that “Congress has repeatedly provided funding for the Iraq war, both in regular appropriations cycles and in supplemental appropriations.”

 

In my opinion, authority to use force in Iraq will not be conferred after December 31, and is not currently conferred, by any of those sources. To summarize my view, an executive agreement cannot confer authority to use force.  A statute can confer such authority, but the Constitution prohibits use of force that exceeds statutorily authorized limits.  Force now being used in Iraq exceeds the limits imposed by both the 2002 Joint Resolution and the AUMF.  The 2002 Joint Resolution authorizes use of force against Iraq for two purposes: to “defend the national security of the United States against the continuing threat posed by Iraq,” as its resolution put it, and to “enforce all relevant United Nations Security Council resolutions regarding Iraq.”  The first purpose has been fulfilled: the “continuing threat” posed by Iraq was seen as stemming from the government of Iraq — principally the regime of Saddam Hussein, and that regime is gone.  The second purpose also has been fulfilled: “all relevant United Nations Security Council resolutions” referred to resolutions in effect at the time of enactment of the 2002 Joint Resolution, and, to the extent that they are still relevant, the current Iraqi government is now in compliance with them.  A contrary interpretation would raise serious delegation, presentment and appointments problems under the Constitution and should therefore be avoided.  As to the AUMF, while it does permit the use of force against “organizations” that “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,” and while force currently is being used against Al Qaeda in Iraq, it is doubtful whether Al Qaeda in Iraq is the same organization that engaged in the 2001 attacks, and in any event force is being used in Iraq against persons and entities not related to Al Qaeda in Iraq.  Authority to use force cannot lawfully be inferred from either of these two ambiguous statutes, or from subsequent appropriations statutes;  such an inference is prohibited under the section 8(a)(1) of the War Powers Resolution, which requires that use of force be specifically authorized.  An elaboration follows.

 

The President’s commander-in-chief power as authority to use force in a limited or “imperfect” war

 

The starting point must be the Constitution.  In its earliest cases, the Supreme Court recognized a president’s obligation to respect congressional restrictions when Congress has authorized “imperfect war” ― a war fought for limited purposes. In an imperfect war, Justice Bushrod Washington said in Bas v. Tingy, 4 U.S. 37, 41 (1800), those “who are authorized to commit hostilities . . . can go no farther than to the extent of their commission.” The following year, in Talbot v. Seeman, 5 U.S. 1, 27 (1801), Chief Justice John Marshall wrote that “[t]he whole powers of war being, by the Constitution of the United States, vested in Congress, the acts of that body can alone be resorted to as our guides in this enquiry.”  In the 2001 AUMF and in the 2002 Joint Resolution on Iraq, Congress in effect authorized limited or “imperfect” war.  The President is therefore constitutionally required to respect the limits imposed in those two laws; Congress has implicitly prohibited any use of force not authorized therein, and the President’s authority is at its “lowest ebb” ― lower than it might have been had Congress been silent.  This is the critical lesson imparted by Justice Jackson’s famous concurring opinion in the Steel Seizure Case, 343 U.S. 579 (1952), which has since been adopted by the Supreme Court as the governing analytic framework.

 

An executive agreement as authority to use force

 

Ambassador Satterfield did not, in his March 4 paper, refer to the February 13, 2008 opinion by Secretary of State Condoleezza Rice and Secretary of Defense Robert Gates suggesting that the new arrangement will confer “authority to fight.”  In any case, whatever the import of such a provision under international law,[1] under U.S. domestic law, authority for the President to use force ― “authority to fight” ― in Iraq must come from either the Constitution or the Congress.  The arrangement with Iraq, if entered into as a sole executive agreement, therefore could not serve as a source of such authority.  The question whether a sole executive agreement can provide authority to use force was put to the State Department during the administration of President Gerald Ford.  In connection with the appearance of Secretary of State Henry Kissinger appearance before the Senate Foreign Relations Committee on November 19, 1975, Senator Dick Clark submitted the following written question to the Department of State:  “Does any executive agreement authorize the introduction of U.S. armed forces into hostilities, or into situations wherein imminent involvement in hostilities is clearly indicated by the circumstances?”  Assistant Secretary of State Robert J. McCloskey responded as follows on March 1, 1976 in a letter to Senator Clark:

 

The answer is “no.”  Under our Constitution, a President may not, by mere executive agreement, confer authority on himself in addition to authority granted by Congress or the Constitution.  The existence of an executive agreement with another country does not create additional power.  Similarly, no branch of the Government can enlarge its power at the expense of another branch simply by unilaterally asserting enlarged authority….

 

The State Department’s 1976 conclusion was correct.  The President cannot confer upon himself authority to use force.   So obvious is this principle that, when Congress made clear in 1973 in the War Powers Resolution (in section 8(a)(2)) that no treaty may be construed as conferring implied authority to use force, it made no reference to executive agreements.  Congress no doubt deemed it unnecessary to affirm that if a treaty approved by two-thirds of the Senate cannot provide such authority, a fortiori a sole executive agreement cannot.

 

A treaty as authority to use force

 

            Even if the new security arrangement were accorded the Senate’s advice and consent as a treaty, it could not constitutionally authorize the use of force.  Authority to use force would have to be conferred by implementing legislation, the enactment of which would of course include participation by the House of Representatives.

 

            “A treaty may not declare war,” the Senate Foreign Relations Committee said in its report on the Panama Canal Treaties, “because the unique legislative history of the declaration-of-war clause…clearly indicates that that power was intended to reside jointly in the House of Representatives and the Senate.” S. Exec. Doc. No. 95-12, at 65 (1978).  The events to which the Committee alluded are recorded in Madison’s notes of the Constitutional Convention.  The Convention considered a proposal that would have permitted the President to make war by and with the advice and consent of the Senate, and the plan was rejected.  The plan was rejected in the face of arguments that both Houses of Congress should participate in the decision to go to war.  Accordingly, the United States has never entered into a treaty that would have placed the nation in a state of war.  The Covenant of the League of Nations was rejected by the Senate in part because of concern that it would oblige the United States to use force if so required by the League’s Assembly.  In each of its post-World War II mutual security treaties, the United States has therefore made clear that none of those treaties imposes an automatic obligation upon the United States to use force.

 

The 2002 Joint Resolution as authority to use force

 

Section 3 of the 2002 Joint Resolution provides as follows:

 
    (a) Authorization.--The President is authorized to use the Armed 
Forces of the United States as he determines to be necessary and 
appropriate in order to--
            (1) defend the national security of the United States 
        against the continuing threat posed by Iraq; and
            (2) enforce all relevant United Nations Security Council 
        resolutions regarding Iraq.

 

The resolution provided no automatic termination date and remains in effect until these objectives are accomplished.  Each of the two “prongs” will be examined in turn.

 

            The first prong: a “continuing threat posed by Iraq”?

 

The first question is whether the Joint Resolution continues to authorize use of force on the basis of its first prong — defense against “the continuing threat posed by Iraq.”  A review of the Resolution’s text and legislative history reveals that it does not.  The “continuing threat” referred to the danger posed in 2002 and earlier by the government of Iraq.  That threat was seen to flow from the regime's pursuit and possession of weapons of mass  destruction. Iraq, the Joint Resolution noted, “attempted to thwart the efforts of weapons inspectors to identify and destroy” these weapons. The Joint Resolution found that Iraq continued “to possess and develop a significant chemical and biological weapons capability,” actively sought a nuclear capability, and supported and harbored terrorist organizations. The threat, the resolution found, was that “the current Iraqi regime” would either employ weapons of mass destruction in a surprise attack against the United States or “provide them to international terrorists who would do so.”

 

That threat is gone.  Saddam Hussein’s regime is history, and the threat posed by it is gone. Hussein is dead. A different government is in place. It does not possess or seek weapons of mass destruction. It does not support or harbor terrorists.  There are, of course, terrorists present in Iraq today who pose a threat to American troops there. They may someday pose a threat to the general U.S. population. But Congress in 2002 authorized use of force against the old Iraqi government, not against groups unaffiliated with Saddam Hussein's regime (many of which actually opposed it).

 

            Our starting point is of course the text of the Joint Resolution.  In and of itself, the text of the first prong says little about the scope of the “continuing threat posed by Iraq.”  Two aspects of the wording are significant, however.  First, the text refers to the continuing threat posed “by Iraq” ― not a continuing threat from Iraq.  The Joint Resolution is not, and was not intended to be, an open-ended authorization to use force against any future threat arising from a group within the territory of Iraq.  Its sponsors had in mind a particular “continuing threat” — one emanating in some way from the Iraqi government.  Second, the threat in question was “continuing,” i.e., it is one that existed before the Joint Resolution was adopted and would continue to exist afterwards, until it could be eliminated with the use of force.  Threats that emerged after the enactment of the Joint Resolution therefore would not be continuing threats ― they would not have continued from the period before use of force was authorized.  Whatever threat may be posed today by entities that were not operating within Iraq before enactment of the Joint Resolution ― such as, for example, Al Qaeda in Iraq ― these are not among the entities against which the Joint Resolution authorizes the use of force.

           

During the debate over this authorization and the decision to go to war, the most cited threat posed by Iraq was that arising from Iraq’s programs to develop weapons of mass destruction.  Nevertheless, based on the legislative history of the resolution, it is not possible to construe the authorization as limited to the threat posed by Iraqi weapons of mass destruction.  Nor was the authorization limited to the WMD threat posed by the regime of Saddam Hussein.  Several amendments offered in the House and the Senate that would have imposed such restrictions were rejected.  In the House Committee on International Relations, Representative Smith proposed an amendment that would have substituted the words “the current Iraqi regime” for “Iraq.”  The amendment was rejected by Committee.  H.R. Rep. No. 107-721, at 38 (2002).  In the Senate, Senator Durbin proposed an amendment that would have replaced the words “the continuing threat posed by Iraq” with “an imminent threat posed by Iraq’s weapons of mass destruction.” 148 Cong. Rec. S10229 (daily ed. Oct. 9, 2002) (text of Amend. 4865).  That amendment was rejected by the Senate. 148 Cong. Rec. S10272 (daily ed. Oct. 10, 2002) (Rollcall Vote No. 236 Leg.).

 

The House committee report likewise confirms that the “continuing threat posed by Iraq” was not limited to the primary threat of Iraq’s weapons of mass destruction, though it does focus on the Iraqi government in power at the time.  The report’s description of “The Current Threat in Perspective” mentions the threat posed by the Iraqi government’s aid to and harboring of terrorist organizations.  H.R. Rep No. 107-721, at 6-8 (2002).  The Report declares that:

 

The current Iraqi government’s demonstrated capability and willingness to use weapons of mass destruction, the risk that the current Iraqi regime will either employ those weapons to launch a surprise attack against the United States or its Armed Forces or provide them to international terrorists who would do so, and the extreme magnitude of harm that would result to the United States and its citizens from such an attack, combine to justify action by the United States to defend itself. H.R. Rep. No. 107-721, at 7 (2002)(emphasis added).

 

            Nevertheless, the House committee report repeatedly uses the “Iraqi regime” as a code word for “the Baathist government of Iraq led by Saddam Hussein.”  The report traces the history of Iraqi aggression and obstinacy in the face of international demands for transparence and compliance with human rights law and international standards for inspection and monitoring of its WMD-capable facilities.  The report notes specifically:

 

Iraq both poses a continuing threat to the national security of the United States and international peace and security in the Persian Gulf region and remains in material and unacceptable breach of its international obligations by, among other things, continuing to possess and develop a significant chemical and biological weapons capability, actively seeking a nuclear weapons capability, and supporting and harboring terrorist organizations.  The continuing threat posed by Iraq is the motivation for the Committee’s favorable action on H.J.Res. 114.

 

The report highlights repeated Iraqi renunciations of its obligations under U.N. Security Council Resolutions, “brutal repression of its civilian population,” Iraqi “capability and willingness” to use WMD externally and internally (against Iran and its own Kurdish citizens), and continuous hostile acts towards the U.S., including the attempt to assassinate former President G.H.W. Bush in 1993.   The report cites Iraqi attacks on U.S. and coalition aircraft enforcing the unilaterally-imposed no-fly zones over northern and southern Iraq. 

 

These are the sorts of “continuing threats” that Congress had in mind.

 

It is thus clear from the House committee report, the floor debate, and the text of the Joint Resolution itself that the authorization’s supporters were concerned about the continuing threat posed by the government of Iraq, not a threat from terrorist groups operating in Iraq or from Iraq.  Numerous members of the House saw the “continuing threat” as stemming from the then-existing Iraqi government. 

 

The same was true in the Senate.  This interpretation is supported specifically by discussion in the Senate surrounding an amendment proposed by Senator Bob Graham that would have added authorization to “defend the national security of the United States against the threat posed by the following terrorist organizations: (A) The Abu Nidal Organization. (B) HAMAS. (C) Hizballah. (D) Palestine Islamic Jihad. (E) Palestine Liberation Front.” 148 Cong. Rec. S10088 (daily ed. Oct. 8, 2002) (text of Amend. 4857).  In opposing the amendment, Senator Joseph Lieberman, one of the original co-sponsors of the Senate version of the text that became H.R.J. Res 114 (2002), argued that this would “open up new territory,” 148 Cong. Rec. S10159 (daily ed. Oct 9, 2002), and would likely be opposed by Senate Democrats, but he did not suggest that the authority to use force against terrorist organizations was already contained in the underlying resolution.  Rather, he characterized the Authorization as follows:

 

[I]n responding to the threat to our national security posed by Iraq under the leadership of Saddam Hussein, it represents our best effort to find common ground to dispatch our constitutional responsibility and to provide an opportunity for the broadest bipartisan group of Senators to come together and express their support of action to enforce the United Nations resolutions that Saddam Hussein has constantly violated…. 148 Cong. Rec. S10159 (daily ed. Oct 9, 2002)(emphasis added).

 

To conclude, both the text and legislative history of the Joint Resolution indicate that the authorization to use force in Iraq was limited to the continuing threat posed by the government of Iraq, in particular, but not limited to, the regime of Saddam Hussein and the threat of weapons of mass destruction.  At present, U.S. forces in Iraq are engaged in the joint use of force with Iraqi forces and President Bush has praised the leadership of Iraqi Prime Minister Nouri al-Maliki.  It is hard to see how any “continuing threat” ― a threat that has continued since before 2002 ― is still posed by that government.

 

The most sensible conclusion, therefore, is that the first prong of the 2002 Joint Resolution is no longer available as a source of authority to use force in Iraq.

 

 

The second prong: “enforce all relevant Security Council resolutions”?

 

            The second prong of the 2002 Joint Resolution further authorizes the use of force to “enforce all relevant United Nations Security Council resolutions regarding Iraq.”  To the extent that any resolutions adopted before enactment of the 2002 Joint Resolution are still applicable, all have been honored by the Iraqi government; the United States surely is not contemplating the use of force to enforce them against that government.  The question, therefore, is the meaning of “relevant”: does the term, as used in the second prong, refer to future United Nations Security Council resolutions ― resolutions relevant to Iraq that might at some point in the future be adopted by the Security Council?  The Joint Resolution, it is worth noting, does not set a pertinent time period; if it were construed as authorizing force to enforce a future Security Council resolution, there would be no reason, in other words, to believe that that authority would not continue indefinitely into the future, until the 2002 Joint Resolution is formally repealed.

 

            The text of the second prong is ambiguous.  The legislative history, however, is not.  Congress appears clearly to have intended to authorize the enforcement of those Security Council resolutions outstanding at the time of the enactment and, at most, a limited set of potential future Security Council resolutions directed at implementing the outstanding resolutions.  This set of future resolutions would not include Resolution 1790, which provides the current mandate for the Multinational Force in Iraq.

 

            The second prong of the Authorization is not the only reference to “all relevant Security Council resolutions” in the 2002 Joint Resolution.  107 Pub. L. No. 243 § 2(2) (2002).  The immediately preceding section expresses Congressional support for U.S. diplomatic initiatives regarding Iraq using the same language regarding Security Council resolutions.  In addressing this provision, the House committee report specified exactly what constitutes a relevant Security Council resolution for these purposes:

 

This section states that Congress supports the efforts of President Bush to strictly enforce, through the United Nations Security Council, all Security Council resolutions adopted prior to the enactment of this Act addressing the threats posed by Iraq, or adopted afterward to further enforce the earlier resolutions. H.R. Rep. No. 107-721, at 41 (2002) (emphasis added).

 

The use of the same language in the subsequent section authorizing the use of the Armed Forces implicitly includes the same set of Security Council resolutions.

           

Further support for this interpretation is provided by statements made during the House and Senate floor debates by Representative Richard Gephardt and Senator Lieberman, the original co-sponsor and sponsor of the House and Senate versions of the bill, respectively, who played a significant role in managing the debate over H.R.J. Res. 114.  In the House, Representative Gephardt stated:

 

The resolution and its accompanying report define the threat posed by Iraq as consisting primarily of its weapons of mass destruction programs and its support for international terrorism. They also note that we should continue to press for Iraqi compliance with all outstanding U.N. resolutions, but suggest that we only contemplate using force to implement those that are relevant to our nation's security.

 

As for the duration of this authorization, this resolution confines it to the continuing threat posed by Iraq; that is, its current and ongoing weapons programs and support for terrorists. We do not want Congress to provide this or subsequent Presidents with open-ended authority to use force against any future threats that Iraq might pose to the United States that are not related to its current weapons of mass destruction programs and support for international terrorism. The President would need to seek a new authorization from Congress to respond to any such future threats. 148 Cong. Rec. H7779 (daily ed. Oct. 10, 2002) (emphasis added).

 

In the Senate, Senator Lieberman emphasized that the two prongs of the Authorization are linked and that relevant resolutions are those relating to the continuing threat by Iraq:

It seems to me these two parts have to be read in totality as modifying each other. The resolutions that are relevant in the U.N. Security Council are to be enforced particularly in relationship to the extent to which they threaten the national security of the United States. In doing this, we are expressing our understanding that the President is unlikely to go to war to enforce a resolution of the United Nations that does not significantly affect the national security of the United States. 148 Cong. Rec. S10269 (daily ed. Oct 10, 2002) (emphasis added).

 

            The legislative history thus conclusively reveals that the second prong of the 2002 Joint Resolution was intended to authorize (1) the enforcement of pre-existing Security Council Resolutions and (2) at most, future Security Council resolutions that were aimed at implementing the earlier resolutions and were related to “the continuing threat posed by Iraq.”  Security Council Resolution 1790 — the current UN authorization for the Multinational Force — does not fall within the scope of either class.

 

Neither Resolution 1790 nor preceding resolutions passed to authorize the Multinational Force in Iraq can be construed as resolutions aimed at implementing resolutions that were active at the time H.R.J. Res. 114 was passed.  Security Council Resolution 1790 renews the mandate of Security Council Resolution 1546 (2004).  During the period in which the Coalition Provisional Authority exercised sovereign control over Iraq, the Multinational Force was authorized by Security Council Resolution 1511 (2003).  Not one of these resolutions makes any reference, even in preambular language, to Security Council Resolution 687 or any other resolution relating to Iraq that was in force when the 2002 Joint Resolution was passed.  Nothing in Resolution 1790 suggests that it was adopted to implement or enforce resolutions that were outstanding in October, 2002 when Congress’s Joint Resolution was enacted.

 

If the 2002 Joint Resolution were to be interpreted as authorizing the enforcement of an unlimited set of future resolutions regarding Iraq that the Security Council might pass, three potentially serious constitutional problems would arise.

 

  The first concerns the delegation of legislative power.  The doctrinal specifics of constitutional jurisprudence governing the delegation of power to international organizations are amorphous; however, the constitutional principle that restricts the domestic delegation of legislative power — the principle that no delegated powers can be further delegated (delegate potestas non potest delegari) — would seemingly apply equally to international delegations.  Among the domestic branches of the U.S. government, the delegation doctrine precludes Congress from delegating power without providing an “intelligible principle” to guide its application. J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)   Internationally, an open-ended grant of power to the UN Security Council to determine ― within U.S. domestic law ― the time, place, manner and objectives of U.S. use of force in Iraq would squarely raise such concerns.  Although not expressed in explicit constitutional terms, the statements by a number of Senators who opposed the Levin amendment reflected the same concern.  The Levin amendment would have made Congress’s authorization contingent upon a resolution from the UN Security Council authorizing the use of force; a number of Senators were concerned that its adoption would give the Security Council a veto over U.S. security policy in Iraq.  President Bush himself expressed similar concerns in signing the U.S.-India Peaceful Atomic Energy Cooperation Act.  The law as enacted prohibits the transfer of nuclear material to India in violation of guidelines set by the Nuclear Suppliers Group, a consortium of 40 nuclear-fuel-producing nations that includes the United States.  The President’s December 8, 2006 signing statement said that “a serious question would exist as to whether the provision unconstitutionally delegated legislative power to an international body,” and that to “avoid this constitutional question” his Administration would interpret the provision “as advisory.”  To construe the Joint Resolution as delegating to the UN Security Council power to determine whether authority to use force is available in U.S. domestic law would raise the same constitutional question. The Constitution permits only 535 members of Congress to place the United States in a state of war ― not the UN ambassadors of Belgium, Croatia and