Lewis, John M.

English

ValpoScholar

Valparaiso University Law Review 
Volume 21 
Number 1 Fall 1986 pp.69-74 
Fall 1986 
The Political Question of the War Powers Resolution 
John M. Lewis 
Follow this and additional works at: https://scholar.valpo.edu/vulr 
 Part of the Law Commons 
Recommended Citation 
John M. Lewis, The Political Question of the War Powers Resolution, 21 Val. U. L. Rev. 69 (2011). 
Available at: https://scholar.valpo.edu/vulr/vol21/iss1/3 
This Commentary is brought to you for free and open 
access by the Valparaiso University Law School at 
ValpoScholar. It has been accepted for inclusion in 
Valparaiso University Law Review by an authorized 
administrator of ValpoScholar. For more information, 
please contact a ValpoScholar staff member at 
scholar@valpo.edu. 
THE POLITICAL QUESTION OF THE WAR
POWERS RESOLUTION
JOHN M. LEwIS*
Professor Rostow has done an impressive job clearing away the under-
growth of legal and constitutional debate that has grown up around the
War Powers Resolution in the past thirteen years. His learned and persua-
sive analysis seems to me to have demonstrated the unconstitutionality of
the Resolution, though a full evaluation of his thesis must be left to those
more qualified than I in the rigors of constitutional law. In clearing the
ground, Professor Rostow has shown that at the heart of the controversy
over the Resolution lies a political question that has exercised scholars' and
politicians' minds since the Constitution was written. This is the question,
as he puts it, of how we are to "fashion and refashion the Presidency and
Congress as responsible and cooperative institutions capable of carrying out
a foreign policy adequate to the security needs of our times. .. ."
To be sure, constitutional and legal considerations throw revealing
light on this political question by setting limits to the answers that are per-
missible. But constitutional and legal considerations do not fully answer it,
according to Professor Rostow. The error of the "ultra-Whigs," and of Con-
gress in passing the Resolution, is in seeking a legal remedy for a political
problem. Such a course is, in this instance, not only unconstitutional but
also futile. As is appropriate, Professor Rostow devotes most of his article to
the legal issues and to the inadequacy of the legal remedy. But he has im-
portant and interesting things to say about the underlying political question,
and it is this question I should like to explore.
The political question of how Congress and the president can best work
together is one aspect of a broader problem. Lincoln described it, in a gen-
eral form, in a speech he made on November 10, 1864: "It has long been a
grave question whether any government, not too strong for the liberties of
its people, can be strong enough to maintain its own existence, in great
emergencies." '2 In The Federalist No. 51, Madison approaches the same
* Associate Professor of Political Science and Acting Chairman of the Division of Arts
and Sciences, Indiana University at South Bend. B.A., 1963, M.A., 1969, Oxford University;
Ph.D., 1979, Cornell University.
I. Eugene V. Rostow, "Once More Unto the Breach:" The War Powers Resolution
Revisited, 21 VAL. U.L. REv. 1, 48 (1986).
2. Abraham Lincoln, Response to a Serenade, November 10, 1864, 8 THE COLLECTED
Lewis: The Political Question of the War Powers Resolution
Produced by The Berkeley Electronic Press, 2011
70 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 21
general problem from a different direction: in designing a government, he
said, "you must first enable the government to control the governed; and in
the next place oblige it to control itself."' 3 The problem, then, is to create a
government to which the people's liberty may safely be entrusted and which
is, at the same time, suitably strong or efficient. Two hundred years of de-
bate and more have gone into defining terms like "safe" and "efficient": the
delegates to the Constitutional Convention and to the ratifying conventions
could not agree on how to balance these two conflicting goals, and this disa-
greement lies at the core of Professor Rostow's dispute with the ultra-
Whigs. How safe is safe enough? How much safety may prudently be put
at risk in order to gain greater efficiency? Answers to these questions de-
pend upon fundamental attitudes and beliefs about the nature of human
beings and the way the world works, and they are not susceptible of final,
conclusive demonstration.
Lincoln had an answer: he judged that the actions he took in the inter-
ests of efficiency would ultimately enhance and not undermine the general
safety. He believed, further, that he could find an acceptable balance within
the requirements of the Constitution. If he achieved this goal, as genera-
tions of Americans have supposed he did, it was with a combination of what
Professor Rostow refers to as "sensible political judgments" 4 and a
profound understanding of the requirements of the Constitution. Madison, a
major author of the Constitution and of the Federalist Papers, had a differ-
ent kind of answer to the problem of balancing safety with efficiency. He
sought to create a psychological mechanism, embedded in the Constitution,
which would use human nature to provide a balance. Efficiency would be
served by creating a national government notably more energetic and capa-
ble of decisive action than had been its predecessor under the Articles of
Confederation; liberty would be kept safe by setting the ambition of each
politician to check the ambitions of others.' Lincoln and Madison between
them exemplify the two ways Americans have traditionally addressed the
basic problem: relying on the good judgment of politicians, and depending
on constitutional mechanisms. Much of American constitutional history can
be seen as an on-going argument between those whose optimistic view of
human nature leads them to trust politicians' judgments and those whose
more pessimistic view seeks protection from these judgments in formal con-
stitutional safeguards. More precisely, the argument has centered on just
how tightly should be drawn the constitutional restraints within which poli-
ticians are left to exercise their judgment. In other words, then, the funda-
mental question of how to balance efficiency with safety has traditionally
WORKS OF ABRAHAM LINCOLN (1953) 100.
3. THE FEDERALIST 322 (Mentor 1961).
4. Rostow, supra note 1, at 50.
5. FEDERALIST, supra note 3, at 322.
Valparaiso University Law Review, Vol. 21, No. 1 [2011], Art. 3
https://scholar.valpo.edu/vulr/vol21/iss1/3
LEWIS COMMENTARY
been answered with a mixture of constitutional law and political judgment.
The proper proportions in which these ingredients should be mixed,
and who decides what is proper, are themselves controversial questions. In
much of domestic politics these issues have been defined and redefined re-
peatedly, by the courts, by the legislatures, and by the everyday practice of
politicians over two centuries. In foreign and national security affairs, on
the other hand, the lines have usually been less sharply drawn. For the most
part, the pattern of decision making in the field of national security policy
has been set by what presidents have actually done rather than by what the
courts or Congress said should be done. The Supreme Court has, over the
years, set outer limits to the president's discretion; but this has generally
been on occasions when national security policy substantially spilled over
into those economic or civil liberties issues with which the Court has tradi-
tionally concerned itself. For example, in Ex Parte MilliganO the Court
chastised Lincoln over his use of special military courts to try civilians, but
they did so only after his death; in Youngstown7 Truman was limited in the
domestic means he could employ to support a war economy, but without
significantly interfering with his conduct of the Korean War. More recent
and less famous cases have continued to define the outer edges of the presi-
dent's authority, but have left intact most of his customary room to ma-
noeuvre.8 On the other hand, in Korematsu," the president's judgment of
what was required for military efficiency was upheld over Korematsu's
claim of constitutional protection for his liberty.
Congress' legislative restrictions upon the president's conduct of na-
tional security policy have been more frequent, and Professor Rostow notes
that this tension between the two branches of government is traditional.
The Senate's refusal to ratify Woodrow Wilson's League of Nations in
1919 and various congressional restrictions on the use of money and troops
in Vietnam in the early 1970s are notable examples, in this century, of
substantial curbs upon presidential action. In general, however, the presi-
dent has usually been allowed, within broad limits and often after a strug-
gle, to rely on his own political judgments of what circumstances require
and how to balance the needs of efficiency and liberty in the field of na-
tional security policy.
Professor Rostow suggests that these delicate balances, between presi-
dent and Congress and between constitutional law and political judgment,
have become more contentious as the twentieth century has advanced,
6. 4 WALL. 2 (1866).
7. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
8. CLINTON ROSSITER, THE SUPREME COURT AND THE COMMANDER IN CHIEF (1976),
esp. introductory note and chap. III by RICHARD P. LONGAKER.
9. Korematsu v. United States, 323 U.S. 214 (1944).
1986]
Lewis: The Political Question of the War Powers Resolution
Produced by The Berkeley Electronic Press, 2011
72 VALPARAISO UNIVERSITY LAW REVIEW
largely because increased American involvement in a turbulent world has
made national security affairs more salient in the national agenda and,
therefore, a more frequent subject of dispute between the executive and
legislative branches. 10 Congress has grown less willing to trust the president
to find a balance between efficiency and liberty. The War Powers Resolu-
tion is a result of this reluctance. In the terms I have been using, the Reso-
lution attempts to adjust the mixture of constitutional law and political
judgment in favor of the former, by shifting important decision-making re-
sponsibility from the president to Congress, and thereby, presumably, mak-
ing safer the president's pursuit of efficiency. This attempted shift, Profes-
sor Rostow argues, is both unconstitutional and impractical. As I have said,
I am persuaded by his discussion of constitutionality. The matter of imprac-
ticality I would like to examine further.
Presumably the fundamental doctrine of the Constitution requires that
Congress share with the president responsibility for policy making, in for-
eign and national security affairs as in other areas. Professor Rostow
agrees, and he quotes with approval John Marshall's phrase about the
"Grand Design of the American polity" 11-a design which includes a prom-
inent place for Congress. But in the turbulent world of twentieth century
national security policy, it has become not only increasingly necessary to
define Congress' proper role but also increasingly difficult. Congress is, by
design, a deliberative institution, tuned to the leisurely pace of public de-
bate where all points of view may be heard and decision is reached by un-
hurried bargain and compromise among generalists and laymen. Congress
is, in fact, a marvelous product of the eighteenth century American En-
lightenment with its confidence in rational discussion moderated by Madis-
onian cautions and precautions. But in the twentieth century Congress has
had to try to adjust to a politics which is not only more concerned with
vexatious world affairs than before but also more in need of speedy deci-
sions, secret decisions, and the mastery of arcane technical information.
To some extent Congress has met' these challenges by relying on pro-
fessional staffs, specialized committees, and a vast cloud of lobbyists offer-
ing expertise on every imaginable topic. But all this has not prevented a
decline in Congress' ability to participate in a timely and meaningful way.
In domestic affairs, for example budgetary policy, the nation accepts delays
and unseemly last-minute scrambling as the price for full congressional par-
ticipation. Efficiency is sacrificed for the safety that liberty finds, presuma-
bly, in the participation of 535 elected members of Congress. But the strain
is showing, and we frequently hear grumbles of frustration and impatience
from the public and from executive officials.
10. Rostow, supra note I, at 5.
II. Id. at 3.
[Vol. 21
Valparaiso University Law Review, Vol. 21, No. 1 [2011], Art. 3
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LEWIS COMMENTARY
Congress has made a different kind of adjustment in national security
affairs. Here, the demands of secrecy and technological expertise are often
much greater. And the need for speedy decisions may be totally beyond
Congress' ability to meet, as when the government must respond to a threat
of imminent nuclear attack. Professor Rostow points out that there have
been numerous national security crises in the recent past when these mod-
ern pressures have effectively excluded Congress from participating in criti-
cal decisions at the time they were made. And surely he is right that a
president's consultation with Congress during a crisis, should this actually
occur, hardly constitutes official congressional action as envisioned by the
separation of powers. 12 It is clear, then, that to achieve necessary efficiency
in the conduct of modern national security affairs we must sometimes aban-
don the particular kind of safety Congress was designed to provide. The
War Powers Resolution is impractical because it seeks to give Congress a
role in those very decisions where its antique procedures obstruct effi-
ciency-and, when the nation's security is most desperately threatened, we
will demand efficiency even at a high cost in congressional safeguards for
liberty. I agree with Professor Rostow that, in the fearful emergencies of
modern national security policy, a rigid insistence upon formal constitu-
tional procedures must give way to a reliance upon the sensible political
judgments of politicians, even if the sensible political judgments of con-
gressmen amount to no more than leaving the president to handle the crisis
himself.' s I would, however, dissent from his assertion that, in passing the
War Powers Resolution, Congress' goal was to "annex some Presidential
territory as its own,"1 4 and his implication that this was a "naked grab for
Congressional supremacy."'" That seems to me to go beyond what the facts
will support.
Professor Rostow proposes for Congress a self-denying policy in these
urgent military crises that is reminiscent of one that Justice Jackson pro-
posed for the courts in his dissent in Korematsu.'6 There Jackson argued
that it was inappropriate for the courts to second-guess the president in the
exercise of his military powers in a grave emergency, not because those
powers were necessarily sanctioned by the Constitution but because consti-
tutionality was an inappropriate standard to require of military actions in
such emergencies. Jackson would have neither approved nor disapproved
the president's actions: he implied that the Court should not have taken the
case. He went on to make the same political point that Professor Rostow
paraphrases from John Marshall in Gibbons v. Ogden,' 7 namely that the
12. Id. at 2, 17, 40.
13. Id. at 50.
14. Id. at 40.
15. Id. at 45.
16. 323 U.S. 214, 242-8 (1944).
17. Rostow, supra note I, at 50.
19861
Lewis: The Political Question of the War Powers Resolution
Produced by The Berkeley Electronic Press, 2011
74 VALPARAISO UNIVERSITY LAW REVIEW
principal safeguard against abuse of executive power in a military emer-
gency lies in the electoral responsibility of the president to the people. This
is surely eminently sound: the people's willingness to elect wise and respon-
sible politicians is a far surer safeguard of liberty than are constitutional
constraints-especially in a desperate crisis where there is no time to en-
gage constitutional machinery. History shows that dictators and scoundrels
are not much impeded by constitutional limitations once they are elected to
power.
Where does all this leave Congress in the conduct of national security
affairs? Professor Rostow demolishes the War Powers Resolution, but he
does not answer this question. This is no criticism: he did not set out to
answer it. But it remains an intriguing problem, and it is an important one
if we are to continue to take seriously the "Grand Design" of the Constitu-
tion. What can Congress realistically expect to do in modern crises that are
increasingly urgent, desperate, complex, and frequent? It can, of course,
substantially influence the way the president handles a crisis by determining
in advance, by statute, what resources he shall have available. It can con-
tinue to ask the president to consult with key members of Congress even as
a crisis unfolds-and sometimes he may do so. It can exercise its own politi-
cal judgment and endorse the president's actions. But none of this assures
Congress the sort of place in policy making that the Framers of the Consti-
tution intended. The Framers probably expected the president to exercise a
considerable prerogative in urgent crises; but they cannot have foreseen how
frequent these crises would become or how important they would be in de-
termining general policy.
It seems likely that the modern balance between efficiency and liberty,
between constitutional law and political judgment, and between president
and Congress can never again be what the Framers intended. The Constitu-
tion was designed to be flexible and to adapt to changing needs; that is one
of its strengths. But modern politics appears to require a degree of distor-
tion of the original plan that threatens to subvert the Framer's fundamental
vision. The War Powers Resolution is an attempt, however misguided, to
address a serious problem. Professor Rostow's discussion gives an indication
of how difficult it will be to solve.
[Vol. 21
Valparaiso University Law Review, Vol. 21, No. 1 [2011], Art. 3
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The Political Question of the War Powers Resolution

Valparaiso University

Valparaiso University Law Review Volume 21 Number 1 Fall 1986 pp.69-74 Fall 1986 The Political Question of the War Powers Resolution John M. Lewis Follow this and additional works at: https://scholar.valpo.edu/vulr  Part of the Law Commons Recommended Citation John M. Lewis, The Political Question of the War Powers Resolution, 21 Val. U. L. Rev. 69 (2011). Available at: https://scholar.valpo.edu/vulr/vol21/iss1/3 This Commentary is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at scholar@valpo.edu. THE POLITICAL QUESTION OF THE WARPOWERS RESOLUTIONJOHN M. LEwIS*Professor Rostow has done an impressive job clearing away the under-growth of legal and constitutional debate that has grown up around theWar Powers Resolution in the past thirteen years. His learned and persua-sive analysis seems to me to have demonstrated the unconstitutionality ofthe Resolution, though a full evaluation of his thesis must be left to thosemore qualified than I in the rigors of constitutional law. In clearing theground, Professor Rostow has shown that at the heart of the controversyover the Resolution lies a political question that has exercised scholars' andpoliticians' minds since the Constitution was written. This is the question,as he puts it, of how we are to "fashion and refashion the Presidency andCongress as responsible and cooperative institutions capable of carrying outa foreign policy adequate to the security needs of our times. .. ."To be sure, constitutional and legal considerations throw revealinglight on this political question by setting limits to the answers that are per-missible. But constitutional and legal considerations do not fully answer it,according to Professor Rostow. The error of the "ultra-Whigs," and of Con-gress in passing the Resolution, is in seeking a legal remedy for a politicalproblem. Such a course is, in this instance, not only unconstitutional butalso futile. As is appropriate, Professor Rostow devotes most of his article tothe legal issues and to the inadequacy of the legal remedy. But he has im-portant and interesting things to say about the underlying political question,and it is this question I should like to explore.The political question of how Congress and the president can best worktogether is one aspect of a broader problem. Lincoln described it, in a gen-eral form, in a speech he made on November 10, 1864: "It has long been agrave question whether any government, not too strong for the liberties ofits people, can be strong enough to maintain its own existence, in greatemergencies." '2 In The Federalist No. 51, Madison approaches the same* Associate Professor of Political Science and Acting Chairman of the Division of Artsand Sciences, Indiana University at South Bend. B.A., 1963, M.A., 1969, Oxford University;Ph.D., 1979, Cornell University.I. Eugene V. Rostow, "Once More Unto the Breach:" The War Powers ResolutionRevisited, 21 VAL. U.L. REv. 1, 48 (1986).2. Abraham Lincoln, Response to a Serenade, November 10, 1864, 8 THE COLLECTEDLewis: The Political Question of the War Powers ResolutionProduced by The Berkeley Electronic Press, 201170 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 21general problem from a different direction: in designing a government, hesaid, "you must first enable the government to control the governed; and inthe next place oblige it to control itself."' 3 The problem, then, is to create agovernment to which the people's liberty may safely be entrusted and whichis, at the same time, suitably strong or efficient. Two hundred years of de-bate and more have gone into defining terms like "safe" and "efficient": thedelegates to the Constitutional Convention and to the ratifying conventionscould not agree on how to balance these two conflicting goals, and this disa-greement lies at the core of Professor Rostow's dispute with the ultra-Whigs. How safe is safe enough? How much safety may prudently be putat risk in order to gain greater efficiency? Answers to these questions de-pend upon fundamental attitudes and beliefs about the nature of humanbeings and the way the world works, and they are not susceptible of final,conclusive demonstration.Lincoln had an answer: he judged that the actions he took in the inter-ests of efficiency would ultimately enhance and not undermine the generalsafety. He believed, further, that he could find an acceptable balance withinthe requirements of the Constitution. If he achieved this goal, as genera-tions of Americans have supposed he did, it was with a combination of whatProfessor Rostow refers to as "sensible political judgments" 4 and aprofound understanding of the requirements of the Constitution. Madison, amajor author of the Constitution and of the Federalist Papers, had a differ-ent kind of answer to the problem of balancing safety with efficiency. Hesought to create a psychological mechanism, embedded in the Constitution,which would use human nature to provide a balance. Efficiency would beserved by creating a national government notably more energetic and capa-ble of decisive action than had been its predecessor under the Articles ofConfederation; liberty would be kept safe by setting the ambition of eachpolitician to check the ambitions of others.' Lincoln and Madison betweenthem exemplify the two ways Americans have traditionally addressed thebasic problem: relying on the good judgment of politicians, and dependingon constitutional mechanisms. Much of American constitutional history canbe seen as an on-going argument between those whose optimistic view ofhuman nature leads them to trust politicians' judgments and those whosemore pessimistic view seeks protection from these judgments in formal con-stitutional safeguards. More precisely, the argument has centered on justhow tightly should be drawn the constitutional restraints within which poli-ticians are left to exercise their judgment. In other words, then, the funda-mental question of how to balance efficiency with safety has traditionallyWORKS OF ABRAHAM LINCOLN (1953) 100.3. THE FEDERALIST 322 (Mentor 1961).4. Rostow, supra note 1, at 50.5. FEDERALIST, supra note 3, at 322.Valparaiso University Law Review, Vol. 21, No. 1 [2011], Art. 3https://scholar.valpo.edu/vulr/vol21/iss1/3LEWIS COMMENTARYbeen answered with a mixture of constitutional law and political judgment.The proper proportions in which these ingredients should be mixed,and who decides what is proper, are themselves controversial questions. Inmuch of domestic politics these issues have been defined and redefined re-peatedly, by the courts, by the legislatures, and by the everyday practice ofpoliticians over two centuries. In foreign and national security affairs, onthe other hand, the lines have usually been less sharply drawn. For the mostpart, the pattern of decision making in the field of national security policyhas been set by what presidents have actually done rather than by what thecourts or Congress said should be done. The Supreme Court has, over theyears, set outer limits to the president's discretion; but this has generallybeen on occasions when national security policy substantially spilled overinto those economic or civil liberties issues with which the Court has tradi-tionally concerned itself. For example, in Ex Parte MilliganO the Courtchastised Lincoln over his use of special military courts to try civilians, butthey did so only after his death; in Youngstown7 Truman was limited in thedomestic means he could employ to support a war economy, but withoutsignificantly interfering with his conduct of the Korean War. More recentand less famous cases have continued to define the outer edges of the presi-dent's authority, but have left intact most of his customary room to ma-noeuvre.8 On the other hand, in Korematsu," the president's judgment ofwhat was required for military efficiency was upheld over Korematsu'sclaim of constitutional protection for his liberty.Congress' legislative restrictions upon the president's conduct of na-tional security policy have been more frequent, and Professor Rostow notesthat this tension between the two branches of government is traditional.The Senate's refusal to ratify Woodrow Wilson's League of Nations in1919 and various congressional restrictions on the use of money and troopsin Vietnam in the early 1970s are notable examples, in this century, ofsubstantial curbs upon presidential action. In general, however, the presi-dent has usually been allowed, within broad limits and often after a strug-gle, to rely on his own political judgments of what circumstances requireand how to balance the needs of efficiency and liberty in the field of na-tional security policy.Professor Rostow suggests that these delicate balances, between presi-dent and Congress and between constitutional law and political judgment,have become more contentious as the twentieth century has advanced,6. 4 WALL. 2 (1866).7. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).8. CLINTON ROSSITER, THE SUPREME COURT AND THE COMMANDER IN CHIEF (1976),esp. introductory note and chap. III by RICHARD P. LONGAKER.9. Korematsu v. United States, 323 U.S. 214 (1944).1986]Lewis: The Political Question of the War Powers ResolutionProduced by The Berkeley Electronic Press, 201172 VALPARAISO UNIVERSITY LAW REVIEWlargely because increased American involvement in a turbulent world hasmade national security affairs more salient in the national agenda and,therefore, a more frequent subject of dispute between the executive andlegislative branches. 10 Congress has grown less willing to trust the presidentto find a balance between efficiency and liberty. The War Powers Resolu-tion is a result of this reluctance. In the terms I have been using, the Reso-lution attempts to adjust the mixture of constitutional law and politicaljudgment in favor of the former, by shifting important decision-making re-sponsibility from the president to Congress, and thereby, presumably, mak-ing safer the president's pursuit of efficiency. This attempted shift, Profes-sor Rostow argues, is both unconstitutional and impractical. As I have said,I am persuaded by his discussion of constitutionality. The matter of imprac-ticality I would like to examine further.Presumably the fundamental doctrine of the Constitution requires thatCongress share with the president responsibility for policy making, in for-eign and national security affairs as in other areas. Professor Rostowagrees, and he quotes with approval John Marshall's phrase about the"Grand Design of the American polity" 11-a design which includes a prom-inent place for Congress. But in the turbulent world of twentieth centurynational security policy, it has become not only increasingly necessary todefine Congress' proper role but also increasingly difficult. Congress is, bydesign, a deliberative institution, tuned to the leisurely pace of public de-bate where all points of view may be heard and decision is reached by un-hurried bargain and compromise among generalists and laymen. Congressis, in fact, a marvelous product of the eighteenth century American En-lightenment with its confidence in rational discussion moderated by Madis-onian cautions and precautions. But in the twentieth century Congress hashad to try to adjust to a politics which is not only more concerned withvexatious world affairs than before but also more in need of speedy deci-sions, secret decisions, and the mastery of arcane technical information.To some extent Congress has met' these challenges by relying on pro-fessional staffs, specialized committees, and a vast cloud of lobbyists offer-ing expertise on every imaginable topic. But all this has not prevented adecline in Congress' ability to participate in a timely and meaningful way.In domestic affairs, for example budgetary policy, the nation accepts delaysand unseemly last-minute scrambling as the price for full congressional par-ticipation. Efficiency is sacrificed for the safety that liberty finds, presuma-bly, in the participation of 535 elected members of Congress. But the strainis showing, and we frequently hear grumbles of frustration and impatiencefrom the public and from executive officials.10. Rostow, supra note I, at 5.II. Id. at 3.[Vol. 21Valparaiso University Law Review, Vol. 21, No. 1 [2011], Art. 3https://scholar.valpo.edu/vulr/vol21/iss1/3LEWIS COMMENTARYCongress has made a different kind of adjustment in national securityaffairs. Here, the demands of secrecy and technological expertise are oftenmuch greater. And the need for speedy decisions may be totally beyondCongress' ability to meet, as when the government must respond to a threatof imminent nuclear attack. Professor Rostow points out that there havebeen numerous national security crises in the recent past when these mod-ern pressures have effectively excluded Congress from participating in criti-cal decisions at the time they were made. And surely he is right that apresident's consultation with Congress during a crisis, should this actuallyoccur, hardly constitutes official congressional action as envisioned by theseparation of powers. 12 It is clear, then, that to achieve necessary efficiencyin the conduct of modern national security affairs we must sometimes aban-don the particular kind of safety Congress was designed to provide. TheWar Powers Resolution is impractical because it seeks to give Congress arole in those very decisions where its antique procedures obstruct effi-ciency-and, when the nation's security is most desperately threatened, wewill demand efficiency even at a high cost in congressional safeguards forliberty. I agree with Professor Rostow that, in the fearful emergencies ofmodern national security policy, a rigid insistence upon formal constitu-tional procedures must give way to a reliance upon the sensible politicaljudgments of politicians, even if the sensible political judgments of con-gressmen amount to no more than leaving the president to handle the crisishimself.' s I would, however, dissent from his assertion that, in passing theWar Powers Resolution, Congress' goal was to "annex some Presidentialterritory as its own,"1 4 and his implication that this was a "naked grab forCongressional supremacy."'" That seems to me to go beyond what the factswill support.Professor Rostow proposes for Congress a self-denying policy in theseurgent military crises that is reminiscent of one that Justice Jackson pro-posed for the courts in his dissent in Korematsu.'6 There Jackson arguedthat it was inappropriate for the courts to second-guess the president in theexercise of his military powers in a grave emergency, not because thosepowers were necessarily sanctioned by the Constitution but because consti-tutionality was an inappropriate standard to require of military actions insuch emergencies. Jackson would have neither approved nor disapprovedthe president's actions: he implied that the Court should not have taken thecase. He went on to make the same political point that Professor Rostowparaphrases from John Marshall in Gibbons v. Ogden,' 7 namely that the12. Id. at 2, 17, 40.13. Id. at 50.14. Id. at 40.15. Id. at 45.16. 323 U.S. 214, 242-8 (1944).17. Rostow, supra note I, at 50.19861Lewis: The Political Question of the War Powers ResolutionProduced by The Berkeley Electronic Press, 201174 VALPARAISO UNIVERSITY LAW REVIEWprincipal safeguard against abuse of executive power in a military emer-gency lies in the electoral responsibility of the president to the people. Thisis surely eminently sound: the people's willingness to elect wise and respon-sible politicians is a far surer safeguard of liberty than are constitutionalconstraints-especially in a desperate crisis where there is no time to en-gage constitutional machinery. History shows that dictators and scoundrelsare not much impeded by constitutional limitations once they are elected topower.Where does all this leave Congress in the conduct of national securityaffairs? Professor Rostow demolishes the War Powers Resolution, but hedoes not answer this question. This is no criticism: he did not set out toanswer it. But it remains an intriguing problem, and it is an important oneif we are to continue to take seriously the "Grand Design" of the Constitu-tion. What can Congress realistically expect to do in modern crises that areincreasingly urgent, desperate, complex, and frequent? It can, of course,substantially influence the way the president handles a crisis by determiningin advance, by statute, what resources he shall have available. It can con-tinue to ask the president to consult with key members of Congress even asa crisis unfolds-and sometimes he may do so. It can exercise its own politi-cal judgment and endorse the president's actions. But none of this assuresCongress the sort of place in policy making that the Framers of the Consti-tution intended. The Framers probably expected the president to exercise aconsiderable prerogative in urgent crises; but they cannot have foreseen howfrequent these crises would become or how important they would be in de-termining general policy.It seems likely that the modern balance between efficiency and liberty,between constitutional law and political judgment, and between presidentand Congress can never again be what the Framers intended. The Constitu-tion was designed to be flexible and to adapt to changing needs; that is oneof its strengths. But modern politics appears to require a degree of distor-tion of the original plan that threatens to subvert the Framer's fundamentalvision. The War Powers Resolution is an attempt, however misguided, toaddress a serious problem. Professor Rostow's discussion gives an indicationof how difficult it will be to solve.[Vol. 21Valparaiso University Law Review, Vol. 21, No. 1 [2011], Art. 3https://scholar.valpo.edu/vulr/vol21/iss1/3

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The Political Question of the War Powers Resolution

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