Advancing a Free Society

Difficulties Beyond Bad Advice: Some Sober Words on the War Powers Resolution

Tuesday, June 21, 2011

Jack Goldsmith has written a sensible post which notes the peculiar procedures that the President followed in making up his mind to stiff-arm the War Powers Resolution (WPR). It may well be the case that the proper way to deal with advice inside the Administration is to rely on the Office of Legal Counsel to collect the information that could then go to the President to decide just what to do. But in one sense, I think that this issue is a side show to the main act. The question is not whether the President gets all his advice in one package, or whether he hears out all the different players. No matter how the process starts, he can always expand the dialog if he so chooses.

The real difficulty in these cases is with the decision to think that the extensive involvement of the United States falls below the threshold “hostilities line.” I have written extensively about this topic in my recent column for Hoover’s Defining Ideas. I will not attempt to summarize my views here, except to say that the President is wrong on the statute, and the defenders of the President are wrong insofar as they insist that he should have just followed in the footsteps of the President’s before him who claimed that the WPR is just unconstitutional. These are grave issues on which the courts offer no help. So at the very least we should hope that our political institutions have enough self-awareness to take their constitutional obligations more seriously than they have done to date.

Read Richard Epstein's analysis at Defining Ideas...

(photo credit: Tom Lohdan)