The debate over whether President Barack Obama violated the 1973 War Powers Resolution by committing U.S. forces to Operation Odyssey Dawn, including the drama of outraged legislators condemning yet another president for disregarding this curious law, was predictable. This most recent effort, like others before it, will probably come to nothing. But the legislation itself is dangerous, and the attempts to invoke it should stop. Republicans and Democrats now have an opportunity to remove the War Powers Resolution from our national life, and they should seize it.
There is an unavoidable tension in the Constitution between the president's role as commander in chief (Article II, section two) and the power of Congress to declare war (Article I, section eight). Although Congress controls defense funding and the Senate must approve treaties, the legislature has little power over the actual execution of military operations. In the wake of Vietnam, an angry Congress tried to settle the matter by legislative fiat with the War Powers Resolution, passed over then-President Richard Nixon's veto in 1973. The important clauses of the resolution allow Congress to direct the withdrawal of U.S. forces from action no later than 60 days after the outbreak of hostilities, unless Congress declares war, extends the 60-day period or is unable to meet due to enemy action, such as a nuclear attack.
This constitutes a "legislative veto" over executive authority, a concept ruled unconstitutional by the Supreme Court nearly 30 years ago. The War Powers Resolution itself has never been adjudicated by the Supreme Court, and from the 1983 invasion of Grenada to the 2011 NATO attack on Libya, presidents have traditionally ignored its requirements while eventually submitting reports that are "consistent with," but not in response to, the resolution. In the meantime, a familiar dance takes place, in which the president continues military action while any legislative opposition, otherwise powerless, briefly roils Washington for a week or two by threatening to invoke the resolution. It is a bipartisan game that is always ill-advised, even with the best of intentions.