EDWIN D.
WILLIAMSON*
*Sullivan & Cromwell LLP: Partner, 1971-1990 and 1993-2006, and Senior Counsel, 2007 – present; U.S. State Department Legal Adviser, 1990-1993.
In 2004-2005, I participated in a War Powers Initiative under the auspices of the Constitution Project.[1] The Initiative was charged “with analyzing and prescribing how the U.S. government should constitutionally and prudently make the decision to use armed force abroad”. Our Committee was chaired by two former members of this body – Mickey Edwards and David Skaggs. Most of its active members had served on Congressional staffs or were academics who are strongly on record as supporting more, rather than less, Congressional participation in decisions to use force. I was the only member of the Committee who had actually advised a part of the Executive Branch in a legal capacity on the President’s use of force powers.
Notwithstanding the strongly pro-Congress bent of our Committee, it reached the following conclusion with respect to the War Powers Resolution (“the “WPR”):
The WPR, as implemented, has neither fulfilled the original intent nor facilitated the collective judgment of the political branches. Its heart is the “sixty-day clock”: a provision (intended to be self-executing) requiring a President to withdraw the armed forces within sixty days (or ninety if he or she deems it militarily necessary) after deployment unless the President has obtained congressional authorization by declaration or specific use-of-force legislation. The WPR has failed for multiple reasons. It defines the President’s defensive war powers too narrowly; . . . ;[2] its never-used provision for two-house veto of a use of force is probably unconstitutional after the Supreme Court’s 1983 decision striking down a one-house veto; and the sixty-day clock at its heart has been misconstrued to give the President a sixty-day “free pass” to use force without congressional authorization[3] and to allow Congress to do nothing . . . . (Report at 31-32)
The fundamental principle enunciated by our Committee was that Congress should be given the opportunity to approve the use of force (and in so doing, Congress should act deliberately and transparently). I agree with that principle. I disagreed, however, with the Committee’s reasoning underlying it. In the Committee’s view, this participation is a legal requirement, mandated by the Constitution. In my view, this participation is a recommendation -- as a political matter, it is prudent for the President to make sure that Congress is committed politically before he/she commences a use of force. In other words, the President is not required to get Congress’ approval before using force for the purpose of defending against threats to our vital national interests, but history has shown that it has been wise for the President to have obtained the political support of Congress for major uses of force.
Since the early days of our Republic, there has been general agreement that there are at least three bases on which the President could act unilaterally to use our armed forces: to put down an insurrection; to protect our citizens; and to defend against a direct or imminent attack on our territory. On these bases, the President has used force outside the U.S., without prior Congressional approval, over 200 times.
Obviously, these traditional justifications need to be looked at in the light of modern conditions. Take, for example, the defense against an armed invasion of U.S. territory. What would in 1789 have been a threat to