JURIST Contributing Editor Michael Kelly of Creighton University School of Law says that Capitol Hill proposals to repeal the 2003 Joint Resolution Authorizing Use of Force Against Iraq could be a prelude to a long-awaited confrontation between the legislative and executive branches over the constitutionality of the 1973 War Powers Resolution…

Senators Robert Byrd and Hillary Clinton are discussing the possibility of repealing the 2003 Joint Resolution Authorizing Use of Force Against Iraq as an alternative method of ending U.S. involvement in what has become a sectarian civil war. This idea is not a new one, but in the wake of President Bush's veto of Congress' war funding bill that called for a phased drawdown of U.S. troops beginning this October, it is now attracting support.

However, what Senators Byrd and Clinton may also be doing is moving into position to provoke a test of the 1973 War Powers Resolution (WPR). Under Sec. 5c of that law, Congress can order a pullback of troops by concurrent resolution if they are in the field without a supporting declaration of war or use of force authorization (concurrent resolutions don't need to be signed by the president). Since they are in Iraq pursuant to such an authorization, that authorization would have to be removed for Congress to undertake such an action.

Republican Senator John Warner has argued that both purposes of the Iraq Authorization have evaporated. Those purposes are found in Sec. 3a of the Authorization to Use Force:

SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) Authorization.–The President is authorized to use the Armed
Forces of the United States as he determines to be necessary and
appropriate in order to–
(1) defend the national security of the United States
against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council
resolutions regarding Iraq.

Logically, since the U.S. is no longer defending itself against a threat from Iraq or enforcing U.N. Security Council resolutions, both of which dealt with the possibility of WMD, repeal would be the way to go. If the authorization is repealed, then Sec. 5c of the War Powers Resolution kicks in and Congress can pull the rug out from under the president without requiring his signature. Indeed, Sec. 3c of the Authorization specifically incorporates the WPR: "Nothing in this joint resolution supersedes any requirement of the War Powers Resolution."

Consequently, this could be the beginning stage of the long awaited fight in the courts concerning the constitutionality of the WPR. Every president since Nixon has considered the WPR unconstitutional, and yet each has complied with its terms. The courts could naturally duck the issue by calling the matter a political question, but this Supreme Court could conceivably deal with it.

Of course, the president could always veto the repeal legislation if it is offered as an act. The other avenue for Congress is to argue that the Authorization has been rendered inapplicable since its underlying justification is no longer connected to what Pres. Bush is doing in Iraq and the "faithful execution of the laws" provision in Article II of the Constitution prohibits the executive from misusing statutes for unintended purposes. Under that theory, Congress would argue that they could trigger a 5c concurrent resolution anyway because there is no longer functionally an underlying Authorization to use force in the Iraqi civil war.

Ironically, they could argue that even the president acknowledged the Authorization's expiry when he declared "mission accomplished" four years ago this month at the end of combat operations – but to do that would be to also acknowledge that Congress waited too long to pull the plug on this military fiasco after it had the power to do so.

Stay tuned. This could be an interesting summer if the WPR finally gets invoked.

Michael J. Kelly is Professor of Law at Creighton University School of Law in Omaha, Nebraska. His recent article on this subject is Pulling at the Threads of Westphalia: “Involuntary Sovereignty Waiver”― Revolutionary International Legal Theory or Return to Rule by the Great Powers?, 10:2 UCLA Journal of International Law & Foreign Affairs (2005), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=960581
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