Trump Calls the War Powers Resolution ‘Totally Unconstitutional’

“Totally unconstitutional,” is the commander in chief’s description of the War Powers Resolution, which Capitol Hill Democrats are invoking to end the fighting in Iran. President Trump has a strong case to make on this head. The law, enacted in 1973 by a Democratic Congress over President Nixon’s veto, disturbs the Framers’ balance of separated powers by seeking to crimp presidents’ powers to command America’s armed forces. The law sets a 60-day limit on a president’s deployment of the military. That deadline came on Friday. At least one legal scholar has mooted the idea that courts could step in to enforce the War Powers. That could terminate the Iran hostilities, even absent any action by Congress. Presidents of both parties have chafed against the measure, but Mr. Trump’s condemnation of the law could could be met with a new push to challenge its legitimacy. Nixon’s veto message lamented that the measure sought “to take away, by a mere legislative act, authorities which the President has properly exercised under the Constitution for almost 200 years.” That appraisal is echoed by the University of Virginia Law’s Robert Turner, who calls the resolution “unconstitutional, unnecessary, and unwise.” Feature, Mr. Turner suggests, the Framers’ decisions at the Constitutional Convention on the war powers question.In the first draft of the Constitution presented at the convention, Mr. Turner reports, Congress was given the power “to make War.” That would have given the legislature “essentially all powers related to war beyond the actual command of troops, as had been the case under the Articles of Confederation,” Mr. Turner avers. Madison proposed a revision that granted the legislature authority only “to declare war,” and the motion was approved with but one nay.The change, reasoned one delegate at the convention, Rufus King of Massachusetts, was necessary to maintain the separation of powers. The phrase “make war” could “give Congress some role in the conduct of war,” Mr. Turner asserts, but that was, as King put it, “an executive function.” The delegates, too, voted unanimously against giving Congress a say “in decisions to conclude wars,” per Mr. Turner, rejecting a call “to give the Legislature power of peace.”This is not to ignore that the Constitution calls for a sharing of the war powers between the branches. Congress, indeed, has a “role in the business of war,” Mr. Turner insists, and presidential power “is totally conditional upon prior legislative action.” The Framers, after all, gave Congress power “to raise and support Armies,” to “provide and maintain a Navy,” and to regulate the military. A president would lack for any forces to deploy without the say-so of Congress.Yet power to declare war, Mr. Turner concludes, “does not carry with it legislative authority to prevent the president from using whatever military Congress creates to safeguard the nation against both foreign threats and acts of aggression.” That helps explain why federal courts have rejected attempts to enforce the War Powers law. Presidents won legal challenges in cases like Crockett v. Reagan, in 1982; Doe v. Bush, in 2002; and Kucinich v. Obama, in 2011.Yale Law’s Stephen Carter, a backer of the War Powers measure, points out that the law was “forced on a weakened President Nixon by a Congress brimming with confidence in the wake of the Watergate scandals.” In 1983 he predicted the law’s constitutional dilemma “will come up again and again until it is finally resolved.” Mr. Trump, never one to shy from confrontation to preserve presidential prerogatives, is well-positioned to settle the issue.

Trump Calls the War Powers Resolution ‘Totally Unconstitutional’

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