The subject of the war powers of the president have again arisen with the Saturday U.S. raid on Caracas and the capturing of Venezuelan dictator Nicolas Maduro and his wife for trial. President Trump did not invoke the War Powers Resolution, although neither did President George H.W. Bush for his invasion of Panama in 1989-1990. The War Powers Resolution is definitely a subject of discussion, though, for this most notable event and today I am looking into the circumstances of the adoption of the War Powers Resolution.
Clement J. Zablocki (D-Wis.) and Nixon.
By 1973, the U.S. was in the process of withdrawing from Vietnam and many members of Congress were critical of how both Presidents Johnson and Nixon had used their war powers. For the latter, it was when Nixon ordered secret bombings of Cambodia without seeking Congressional consent. In the House, Clement J. Zablocki (D-Wis.), chairman of the House Foreign Affairs Committee, introduced the War Powers Resolution. The measure had bipartisan support as well as drafting, with Paul Findley (R-Ill.) being the resolution’s main author. The resolution requires the president to notify Congress within 48 hours of military action and bars forces from remaining for more than 60 days. The first body to vote on this resolution would be the House. On July 18, 1973, they voted for 244-170 (D 171-61, R 73-109). The central architect of the resolution in the Senate was Jacob Javits (R-N.Y.), one of the most liberal members of Nixon’s party who had repeatedly been in opposition to the Nixon Administration on Vietnam. He considered the measure as “a critical departure from the past” (CQ Almanac 1973). However, the measure attracted broad support, and a key senator to come out in favor was the chairman of the Senate Armed Services Committee and known conservative John C. Stennis (D-Miss.), who expressed that “It is of the utmost importance to the future of this nation that we not again slip gradually into a war that does not have the moral support and sanction of the American people” (CQ Almanac 1973). However, the measure did not have the support of another prominent figure from the South, a legal authority on the Constitution, Sam Ervin (D-N.C.). Ervin held that the measure was unconstitutional, stating, “Here is a power and a duty which the Constitution clearly imposes upon the President of the United States, to use the armed forces to protect this country against invasion. And here is a bill which says expressly that the President of the United States cannot perform his constitutional duty and cannot exercise his constitutional power to protect this country against invasion for more than 30 days without the affirmative consent of Congress” (CQ Almanac 1973). There was also a small cadre of liberals who opposed the War Powers Resolution as not being sufficiently strong. Thomas Eagleton (D-Mo.) objected to the absence of a provision disallowing the use of intelligence agencies or other actors to engage in hostilities against other nations (CQ Almanac 1973). On July 20th, the resolution was adopted 72-18 (D 50-4, R 22-14), but because it was different from the House version, the measure had to go into conference. October 10th, the equation did not change in the Senate with a vote of 75-20 (D 49-6, R 26-13, C 0-1), still a veto-proof margin. However, original passage in the House had not been veto-proof. This, however, would not remain so as President Nixon’s popularity was declining from the continuing sore on his presidency that was Watergate.
Majority Leader Tip O’Neill (D-Mass.) argued for the resolution, holding that “If the President can deal with the Arabs, and if he can deal with the Soviets, then he ought to be able and willing to deal with the U.S. Congress. That is all we ask of him” (CQ Almanac 1973). Democratic leadership was united in favor, and Republican leadership was mostly united against. The exception was Senate Minority Leader Hugh Scott (R-Penn.), thus the foremost opponent in the House was Minority Leader Gerald Ford (R-Mich.). Ford, less than a year away from being president, expressed his concerns, “We may be a long ways from being out of the woods. I am very, very concerned that the approval of this legislation over the President’s veto could affect the President’s capability to move forward from cease-fire and to achieve a permanent peace” (CQ Almanac 1973). The resolution passed on October 12th 238-122 (D 163-38, R 75-84). President Nixon, as no one doubted he would, vetoed the resolution. Further eroding Nixon’s popularity, however, between final passage and his veto of the resolution, the “Saturday Night Massacre” had occurred, in which Attorney General Elliot Richardson resigned after refusing Nixon’s order to fire special prosecutor Archibald Cox, and Deputy Attorney General William Ruckelshaus was fired after refusing to fire Cox. Solicitor General Robert Bork ultimately agreed to fire Cox.
The real battle to override the President’s veto occurred in the House, as supporters had more than enough on passage in the Senate to get the resolution through. To achieve an override, eleven opponents of the president had to be lobbied to switch their votes from “nay” to “yea”. Bella Abzug (D-N.Y.), one of the most left-wing members of Congress, had opposed, stating before the conference report that “I shall vote against this bill because it is patently unconstitutional and gives the President power he does not now have…I fear that it does exactly the opposite of what we set out to do: that is, to prevent the President, any president, from usurping the power of Congress to declare war” (CQ Almanac 1973). Speaker Carl Albert (D-Okla.) and the liberal group Americans for Democratic Action actively lobbied these legislators to switch. Their efforts were successful, as eight did so, including Abzug. The House vote of 284-135 (D 197-32, R 87-103) to override on November 7th was four votes above the threshold needed to override President Nixon’s veto.
In the Senate, with an override now inevitable, a few members switched their votes later that day: Republican Howard Baker of Tennessee and Democrats James Allen of Alabama, Harold Hughes of Iowa, and Gaylord Nelson of Wisconsin switched from “nay” to “yea” while Republicans Ted Stevens of Alaska and Henry Bellmon of Oklahoma switched from “yea” to “nay”. The vote was 75-18 (D 50-3, R 25-14, C 0-1). On a side note, the vote on the resolution as reported by Voteview has an error, as Senators Tunney (D-Calif.) and Tower (R-Tex.) have their votes swapped; Tower opposed the War Powers Resolution while Tunney supported. Overall, most of the resolution’s opponents were conservative, but there were some interesting conservative votes in favor on overriding the president’s veto, such as John Ashbrook (R-Ohio), who had run a quixotic primary campaign in 1972 to Nixon’s right, the legendary penny-pincher H.R. Gross (R-Iowa), and John Rousselot (R-Calif.), the only member of the John Birch Society in Congress at the time. In the Senate, conservative Republicans were a bit more unified against with Barry Goldwater (R-Ariz.) and Jesse Helms (R-N.C.) being among the dissenters, but you did have guys like James McClure (R-Idaho) and William Scott (R-Va.) as votes in favor. In another indication of how poorly the Nixon Administration was doing on popularity, among Southern Democrats, a key group that Nixon sought to court support, only Sam Ervin voted against overriding Nixon’s veto.
There have been critics of this resolution, both as being too strong and too weak. Law Professor Robert F. Turner argued in a Fall 2012 journal article that the War Powers Resolution was unwise, unconstitutional, and even resulted in a reduction of American security to the point that it directly contributed to the 9/11 attacks. However, Scott R. Anderson, a fellow of the Brookings Institution, holds that although the War Powers Resolution is imperfect, it was a good undertaking that had a positive result in constraining the executive in getting the US into prolonged wars.
References
Anderson, S.R. (2023, November 9). The Underappreciated Legacy of the War Powers Resolution. Lawfare.
Retrieved from
https://www.lawfaremedia.org/article/the-underappreciated-legacy-of-the-war-powers-resolution
Enactment of War Powers Law Over Nixon’s VETO. CQ Almanac 1973. CQ Press.
Retrieved from
https://library.cqpress.com/cqalmanac/document.php?id=cqal73-1227822#_
To Agree to the Conference Report on H.J. Res. 524, Concerning the War Powers of Congress and the President. Voteview.
Retrieved from
https://voteview.com/rollcall/RH0930382
To Agree to the Conference Report on H.J. Res. 542, to Govern the Use of the Armed Forces by the President During the Absence of a Declaration of War. Voteview.
Retrieved from
https://voteview.com/rollcall/RS0930451
To Override the President’s Veto of H.J. Res. 542, Concerning the War Powers of the Congress and the President Concerning the War Powers of the Congress and the President. Voteview.
Retrieved from
https://voteview.com/rollcall/RH0930412
To Override the President’s Veto of H.J. Res. 542, to Govern the Use of the Armed Forces by the President During the Absence of a Declaration of War. Voteview.
Retrieved from
https://voteview.com/rollcall/RS0930462
To Pass H.J. Res. 524. Voteview.
Retrieved from
https://voteview.com/rollcall/RH0930249
To Pass S. 440, a Bill to Govern the Use of the Armed Forces by the President. Voteview.
Retrieved from
https://voteview.com/rollcall/RS0930303
Turner, R.F. (2012, Fall). The War Powers Resolution at 40: Still an Unconstitutional, Unnecessary, and Unwise Fraud that Contributed Directly to the 9/11 Attacks. Case Western Reserve Journal School of Law, 45(1).
Retrieved from
Mad Politics: The Bizarre, Fascinating, and Unknown of American Political History 