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A. Constitutional War Powers
The Constitution grants Congress the power to declare war in Article I and designates the President as Commander in Chief in Article II. Presidents have repeatedly won disputes over war-making power triggered by that division. Congressional opposition to the undeclared war in Vietnam resulted in the 1973 War Powers Resolution, adopted over President Nixon's veto.17
The Resolution requires a report to Congress within forty-eight hours after deploying U.S. forces. Congress may vote to end the engagement immediately, and the President may not continue a deployment beyond sixty days without express approval. Neither Presidents nor Congress have respected the Resolution.
President Reagan deployed marine peacekeepers in Lebanon and combat forces in Grenada while disputing Congress' authority to limit his discretion. President Bush sent combat troops into Panama, Somalia, and Iraq. Congress actually debated and voted to approve Operation Desert Storm against Saddam Hussein, but President Bush insisted the legislators' resolution was purely advisory.18 In response to a lawsuit challenging the undeclared war, administration lawyers argued that the President had sole discretion to determine when U.S. action constituted "war."19
Similarly, President Clinton prepared to invade Haiti while arguing that a U.N. peacekeeping mission was not "war " that required Congress' approval. "I would strenuously oppose such attempts to encroach on the President's foreign policy powers."20 "Like my predecessors of both parties," he said, "I have not agreed that I was constitutionally mandated to get [approval]."21 In a Defense Department appropriations measure Congress made funding for the Haiti operation contingent on a Presidential report of findings. Rather than expressly authorizing military intervention, Congress had instead voted that funds were not "off limits" for an invasion.22
Immediately after taking office, Clinton had pledged 20,000 U.S. peacekeepers as part of a multilateral force to be deployed in Bosnia. House Republican leaders lost a vote to repeal the War Powers Resolution because some defectors wanted to retain the 1973 law as a check on Clinton’s ability to keep that promise.23
Without interference by Congress, Clinton waged a limited NATO air war against Serbs in Bosnia--Operation Deliberate Force or Dead Eye. Before the Dayton peace negotiations had concluded, the House of Representatives voted twice against U.S. troop deployment in Bosnia. Republican Senator John Ashcroft unsuccessfully objected to the President amending the NATO Treaty without Senate ratification. Article 5 of the 1949 Washington Treaty limited NATO to collective defense of members' territory. Without satisfying the Constitutional requirement of Senate approval, Clinton gave the alliance a new post Cold War mission. "NATO has expanded and will continue to expand its political functions, and taken on new missions of peacekeeping and crisis management in support of the United Nations (UN) and the Organisation for Security and Cooperation in Europe (OSCE) . . ."24
After Clinton announced the Dayton Peace Accord, Congress appropriated funds for the 20,000 U.S. peacekeepers in Operation Joint Endeavor; the House measure also expressly disapproved the administration policy.25 "Some members of Congress] wanted to have it both ways: to avoid responsibility for a bad outcome in Bosnia but to share in the political fruits of a good outcome . . . they said the mission was not worth fighting for, and then they off handedly accepted that American soldiers should be sent to fight for it."26
In foreign as well as domestic policy, legislators practiced a "credit claiming" and "blame avoiding" strategy. Neither Congress nor the courts would be likely to enforce the War Powers Resolution to check a Presidential order for U.S. air strikes on Yugoslavia. According to John Hart Ely: "a tacit deal has existed between the executive and legislative branches . . . that the president will take the responsibility (well, most of it) so long as he can make the decisions, and Congress will forego actual policy-making authority so long as it doesn't have to be held accountable (and can scold the president when things go wrong)."28
