Launching a Three-Branched Attack

SINCE Congress approved the War Powers Resolution in 1974, it has been a continual sticking point between the president and the Congress. The judiciary, perhaps wishing to remain above interbranch political controversy, has been avoiding the case like it was the plague.

A three-judge panel of the U.S. Court of Appeals continued this trend by deciding unanimously last Tuesday to throw out a suit brought by Democratic congressmen that charged President Reagan with violating the resolution. The court claimed that the ceasefire in the Iran-Iraq War had rendered moot the legislators' case that Reagan had acted illegally by introducing troops into a hostile setting in the Persian Gulf without notifying Congress.

Continued debate over who should have control over foreign policy has never been resolved by the courts, which defer the decision because of various administrative technicalities. But the time may soon arrive when the Supreme Court must decide on the constitutionality of the War Powers Act, and that decision will have far-reaching ramifications for our nation's security.

A decision in favor of the President would cement the primacy of the executive branch in foreign affairs. A decision for the Congress could limit the extent to which the President can swiftly act in the nation's interest with the use of military troops.

If George Bush wins the election three weeks from now--as it appears he will--political conflict between a Republican administration and a Democratic Congress could very well force the court to make the decision in the next four years. That decision will likely fall in favor of the President, making presidential authority in foreign affairs virtually limitless.

THE War Powers Act was a kneejerk response by Congress to the unilateral decisions of Presidents Johnson and Nixon to involve the U.S. military in Vietnam. The Congress was only involved to a limited extent--passing the Gulf of Tonkin resolution which helped legitimize Johnson's and Nixon's actions as constitutional. For the most part, though, the legislature had no effect on presidential initiatives.

To prevent future undeclared wars, the Congress overwhelmingly passed the War Powers Act, requiring the president to report to Congress within 48 hours after troops had been moved into "imminent hostilities." The resolution allows the Congress to cut funding for the activity after 60 days if it so wished.

Nixon vetoed the bill, calling it unconstitutional, but Congress overrode the veto. Every president since--Democrat and Republican--has called the act an unconstitutional limit on the power of the executive. And yet, every president has obeyed the law by keeping Congress, or at least individual members of Congress, informed of the nation's military position.

ALTHOUGH most legal experts disagree about what the final result will be, the Supreme Court will most likely decide the case on the basis of a procedural technicality rather than on the proper constitutional distribution of power between the branches.

The War Powers Act allows the Congress to recall troops after they have already been committed, an action that many argue is the equivalent of a legislative veto over the executive. The Supreme Court decided in 1981 that many forms of the legislative veto were unconstitutional.

Given that precedent, the Court could once again avoid controversy by rejecting the resolution as technically unconstitutional. This would save the Court from having to determine the proper balance of power between the two branches in terms of foreign policy.

With a Republican president battling a Democratic Congress for another four years over foreign policy, it is likely that the legislature will not be satisfied with a court decision that reduces its power based only on a technicality. The Congress will likely press for a more accurate definition of the powers of the branches. And if the case is forced, the president will probably win it.

President Reagan, during his eight years in office, has appointed a huge number of conservative judges to the federal bench. Conservative judges on the district and appellate levels will likely support the executive in cases on foreign policy power. Likewise the Supreme Court, which will make the final decision. With three conservative Reagan appointees, the Court may already favor the presidential arguments over the congressional, and if a President Bush gets to appoint another conservative justice, it most certainly will.

But the Court should not have to make such a decision. The power distribution in foreign policy is necessarily vague, due to the ever-changing nature of the world situation. There is nothing wrong with the president and Congress struggling between themselves over this issue--this provides a built-in check on the system that prevents either from consolidating too much power. Given the problems inherent in the choice between Congress and the president, the nation would be better off if the courts continue to avoid delivering a verdict.