Rep. Dennis Kucinich (D-Ohio) brings to mind those movies in which Tarzan raises his hand to a charging herd of elephants and shouts, “Gawa!— It wasn’t until I took a Swahili course that I learned it is not a Hollywood coinage but a real word meaning “split up— or “divide.— The elephants, of course, dutifully obey the command and part, saving Tarzan and his companions from being trampled. (Don’t ask where the elephants learned Swahili.)
[IMGCAP(1)]Unlike Tarzan, however, it is not elephants that Kucinich is dividing, but donkeys. The Ohio Democrat has pulled a clever procedural ploy out of his bag of tricks — this time to invoke an obscure and probably unconstitutional provision of the 1973 War Powers Resolution to direct an immediate withdrawal of U.S. troops from Afghanistan. Acting with Speaker Nancy Pelosi’s (D-Calif.) blessing, Kucinich is forging ahead, knowing full well his resolution doesn’t have a snowball’s chance in the jungle. While it may serve Kucinich well as a symbolic protest against the president’s troop surge, it has left his fellow Democrats torn between supporting the president and favoring a swifter withdrawal.
Setting aside for a moment the political wisdom of pursuing such a floor strategy, it is important to understand the origins and workings of the withdrawal procedure in the war powers law. Under the terms of the act, if the president commits American troops to foreign hostilities without a declaration of war or statutory authorization, he must withdraw them within a period of 60 to 90 days unless Congress subsequently authorizes a longer deployment. A two-chamber withdrawal resolution, not requiring the president’s signature, can be introduced at any time and must be referred to a committee, which has 15 days to report. It then becomes pending floor business to be voted up or down within three days.
Under the terms of the law, a withdrawal resolution cannot be considered if Congress has enacted a declaration of war or an authorization for the use of military force. Even though Congress enacted a use-of-force resolution in 2001, Kucinich claims it does not preclude a withdrawal resolution from still being used. That interpretation is at odds with the actual language of the use-of-force resolution, which states that it “constitute(s) specific statutory authority— under the terms of the War Powers Resolution and does not supersede any requirement of that law. One such requirement is that the two-chamber withdrawal process is not operable if a use-of-force law is in effect. (Kucinich’s office could not provide a requested legal justification for their interpretation after more than a week of inquiries.)
Every president since Richard Nixon has argued that the war powers law is unconstitutional because it interferes with the president’s prerogatives as commander in chief to protect the nation. The unconstitutionality argument was further bolstered by the Supreme Court’s decision in the 1983 Chadha immigration case that Congress cannot, by simple disapproval resolutions, alter the rights and duties of persons outside the Congress because that constitutes lawmaking requiring presidential participation. That decision, by implication, invalidated scores of laws containing such legislative vetoes, including the two-chamber withdrawal process in the War Powers Resolution.
Congress converted most of the offending legislative vetoes to a joint resolution process requiring presentment to the president. However, when the Senate voted 86 to 11 in October 1983 to make the same change with respect to troop withdrawals as an amendment to the State Department authorization, House conferees balked. Rep. Clement Zablocki (D-Wis.), father of the War Powers Resolution and chief House conferee, strongly objected to ceding additional powers to the president. Zablocki and others remembered how the Gulf of Tonkin Resolution in 1964 was used by President Lyndon Johnson to justify the protracted and disastrous conflict in Southeast Asia. Moreover, by late 1983 some Members were already wary of President Ronald Reagan’s foreign adventurism in Lebanon, Grenada, Nicaragua and El Salvador.
Consequently, House and Senate conferees compromised their differences in the 1983 State Department bill by allowing either a concurrent or joint resolution withdrawal process to be used, but with expedited procedures for considering joint resolutions only applicable in the Senate. (While not directly amending the War Powers Resolution, the 1983 amendment appears as a part of the WPR in the U.S. Code.)
Congress has only used the withdrawal provisions of the war powers act on three occasions. In November 1993, the House adopted a resolution favorably reported by the Foreign Affairs Committee directing the president to remove troops from Somalia by March 31, 1994 (a withdrawal date President Bill Clinton had already agreed to). In 1998 and 1999, the House rejected resolutions unfavorably reported by committee directing U.S. troop withdrawals from Bosnia-Herzegovina and the Republic of Yugoslavia, respectively.
Despite the Supreme Court’s clear ruling more than 26 years ago, Congress continues to cling to its clumsy and obsolete concurrent withdrawal weapon as a symbolic club behind the door to waggle at presidents who might entertain undertaking unilateral military forays. The Speaker’s apparent support for using it during an authorized use of military force, and against a president of her own party, would set a new precedent. However, it was a compromise concession made to her liberal colleagues who had been pressing since last year for a vote to cut off funds for the troop surge in Afghanistan.
Voters in November are unlikely to share that liberal consensus against U.S. military involvement in the region, and therein lies the political risk posed by those who would smoke out their colleagues now with no-confidence votes on the president’s war policies. The real test will come soon enough this spring with the vote on the $30 billion to $40 billion Iraq-Afghanistan war supplemental appropriations bill — something Pelosi has already designated “a vote of conscience,— not subject to leadership whipping or pressures.
Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for Scholars and former staff director of the House Rules Committee.