40 years ago today, President Nixon used his presidential veto powers and controversially stood firm against the War Powers Act introduced and passed by a Democratically controlled Congress in 1973.
While President Nixon was working diligently towards securing long-lasting peace in Asia and the Middle East and on arms control with the Soviet Union, he encountered what can be argued as a ploy to undercut his foreign policy capability. As expected, the House and Senate quickly overrode the President’s veto. It is worth studying his reasoning behind his decision to veto the resolution, despite its claim to constitutionality.
Sponsored primarily by Democratic leaders, the resolution was crafted on account of fear and speculation surrounding presidential war powers, particularly in the contemporary Vietnam arena. Yet curiously enough, the democratically controlled Congress did not push forth any such resolution during President Johnson’s tenure—the President who escalated American involvement in the Vietnam War.
Granted, the consensus among Congressional leaders in the early 1970s was that the President was using powers accorded to the Commander-in-Chief far in excess and without appropriate consultation of the Congressional body. This is a verifiable concern, but a concern that could have wrought similar resolutions against presidential war powers during the Johnson or Truman administrations.
Nonetheless, the heart of the war powers dispute lay in analysis of constitutional law.
Section 8, Article 1 of the Constitution states that Congress has the power to declare war, to raise and support armies, to provide for organizing, arming, and disciplining the Militia, and “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”
Section 2, Article 2 states that the President of the United States is vested the title of Commander-in -Chief of the Army and Navy of the United States when called into the actual service of the United States.
The War Powers Resolution of 1973 intended to limit Presidential power in areas of international conflict, particularly engagement areas such as Vietnam and previously in Korea. The armed conflicts in these two countries did not commence or continue with a declaration of war by Congress.
The intent of the resolution, after a Senate and House compromise, is written as such:
It is the purpose of this chapter to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.
House Joint Resolution 542 would under all circumstances necessitating conflict, require the President to submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report of proposed engagement of forces. Additionally, under the condition that war is not declared, the President would have to terminate any use of armed forces within 60 days of the submittal of the report.
Though the resolution cites constitutionality in its intent, President Nixon believed otherwise. After all, the resolution was a legislative addition, not an amendment to the Constitution. He fervently objected a legislative act that would alter the war powers vested in Congress and the President of the United States by the Constitution.
I believe that both these provisions are unconstitutional. The only way in which the constitutional powers of a branch of the Government can be altered is by amending the Constitution—and any attempt to make such alterations by legislation alone is clearly without force.
President Nixon acknowledged the wisdom with which the Founding Fathers chose not to draw a precise line differentiating the foreign policy powers of both branches.
The Founding Fathers understood the impossibility of foreseeing every contingency that might arise in this complex area. They acknowledged the need for flexibility in responding to changing circumstances. They recognized that foreign policy decisions must be made through close cooperation between the two branches and not through rigidly codified procedures.
Perhaps most disturbing to President Nixon was the danger with which the resolution would automatically terminate certain constitutional powers of the President, when for a period of 60 days these powers would in fact be invoked. Under the War Powers Resolution, the foreign policy procedure would be codified in a manner that would even undermine the powers of Congress in such decision making. The reason for this, as President Nixon aptly explains, is that it would give future members of Congress the ability to “handcuff” the President in matters of international concern by simply doing nothing, rather than compelling members to debate the merits of the issue while providing a credible yes or no vote.
An ardent architect of pragmatic foreign policy, President Nixon questioned the passage of this resolution, referring that it would consequentially weaken the overall effectiveness of United States foreign policy as well as his own intentions to instigate peace-keeping.
He believed that in times of international crisis, the United States would be most suited to respond to complex and difficult situations only if the President and Congress maintained the peace-keeping tools of “quiet diplomacy”—or in other words, subtle acts such as shifts in military deployments.
To counter the resolution, the President proposed forming a commission tasked with analyzing the constitutional roles of the Congress and the President in foreign policy matters. President Nixon’s veto and proposal were ultimately futile, but it highlighted some of the constitutionally controversial elements to the resolution of which are hotly debated to this day.