War Powers Reform, U.S. Alliances, and the Commitment Gap

The resolution sought to push back on multiple forms of presidential unilateralism, to include not only executive agreements and policy pronouncements made with partner-states lacking a formal alliance with the United States, but also military actions justified by the executive branch as pursuant to formal alliance relationships but perceived as going beyond Congress’s intent. The discussion below focuses on the latter. A 1967 Senate Foreign Relations Committee (SFRC) report regarding the proposed NCR, for instance, gave special attention to the ratification of the North Atlantic Treaty in 1949 and complained of actions taken by the White House in pursuit of alliance reassurance—for example, Truman’s decision to send American divisions to Europe in 1951, the 1962 Rusk-Thanat declaration (which assured Thailand the United States would come to the nation’s defense via its SEATO obligations even if other allies balked), and the Lyndon B. Johnson administration’s claims that SEATO authorized presidential military intervention in defense of South Vietnam. Members of Congress expressed similar sentiments in the 1967 SFRC hearing on the resolution. Chairman J. William Fulbright, for example, specifically criticized statements made by the Eisenhower administration to the effect that the U.S.-Philippine alliance entailed an automatic U.S. response. Thus, the passage of the NCR involved a perception within that Senate that alliances were contributing to an imperial presidency. Notably, the NCR itself seemingly allowed for the possibility of a treaty alone authorizing the use of force as a matter of domestic law, but only if such an agreement “specifically provid[ed] for such commitment.”

Crafting a Legally Binding War Powers Bill

While the NCR was merely a sense-of-Senate measure, its influence would live on via the WPR. The first WPR draft proposed in the Senate in 1970, for instance, specifically utilized the language of the NCR in allowing for the use of force without further authorization if the president acted pursuant to “[n]ational commitments ‘resulting exclusively from affirmative action taken by the executive and legislative branches of the U.S. government through means of a treaty, convention, or other legislative instrument[.]’” 

But by the next year, several prominent senators introduced their own versions of a war powers bill, and many disagreed over whether treaties of alliance alone could empower the president to use force in defending allies. In the process of creating a single compromise bill, the majority position (most prominently found in Sen. Thomas Eagleton’s version of the bill) with regard to treaties was adopted: They would not serve as a sufficient legal basis for the use of force. The final WPR went so far as to state in Section 8 that “[a]uthority to introduce United States Armed Forces into hostilities … shall not be inferred … from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities.”

The possible effect of the WPR on treaty obligations and their operation was clearly recognized and debated by members of Congress. In a 1972 floor debate, Sen. Barry Goldwater warned that the bill would create “a complete tie-up in at least 17 treaties.” Another senator similarly argued that the resolution would “severely limit our credibility with our allies.” Other senators, however, held that no commitment was being undermined because nothing was being changed. Sen. Jacob Javits argued that the U.S. and its allies had only committed in their defense treaties to meet threats “in accordance with their respective constitutional processes.” 

The Senate report for the 1973 version of the bill would explain:

[T]he provisions [of the WPR] with respect to treaties are important so as to remove the possibility of future contention such as arose with respect to the SEATO Treaty and the Vietnam war. Treaties are not self-executing. They do not contain authority within the meaning of section 3 (4) to go to war. Thus, by requiring statutory action, in the form of implementing legislation or an area resolution of the familiar type, the War Powers Act would perform the important function of defining that elusive and controversial phrase “constitutional processes” which is contained in our security treaties.

In other words, the WPR’s architects recognized the commitment gap and expected that Congress might address it legislatively, as discussed below.

This created a more practical problem in the meantime, however: How would U.S. allies react to this? Eagleton specifically argued that the WPR would have no effect because U.S. allies had already assumed that Congress would have to formally authorize the use of military force in their defense. The Nixon administration, by contrast, emphasized this specific concern of alliance credibility and often used it as an argument against a WPR. Nixon’s veto message of the WPR in 1973 argued that “the confidence of our allies in our ability to assist them could be diminished” by the resolution. Internal documents show the administration was genuinely concerned that the proposed bill would create “a serious erosion of credibility of the U.S. as a collective security partner in eyes of all allies, especially NATO.”

Closing the Commitment Gap After 1973

The sponsors of the WPR were keenly aware of the alliance commitment issue, and they had a specific solution in mind: standing force authorizations, today called authorizations for the use of military force (AUMFs). The Senate Report for the 1973 war powers bill, for example, specifically covered the topic of alliances and argued that “the bill envisages the adoption of treaty implementation legislation, as deemed appropriate and desirable by the Congress and the President.” Similarly, law professor Alexander Bickel, who was intimately involved in crafting the legislation, wrote: 

Our security and the peace of the world continue to depend in substantial measure on credible commitments undertaken by the United States and on a credible American capability to act in a crisis. … Far from eroding it, the [WPR] would substantially enhance it. Under the bill, the United States will be able to make credible international commitments through specific legislation implementing treaties and other agreements.

Javits, the primary sponsor of the legislation, was of similar mind, arguing, in a congressional hearing on the bill in early 1973, that a treaty like NATO would actually be strengthened by a strong WPR, because Congress would pass a standing authorization. Thus, influential architects of the WPR envisioned that a solution to the commitment gap further widened by the WPR was standing AUMFs. If this seems impractical, consider the political context. This was a moment at which, regardless of formal legal checks, a severely weakened presidency would have been especially constrained by public and congressional opinion. Therefore, compared to other moments in the modern presidency, the option of relying on presidential unilateralism to close the commitment gap seemed (to some reformists) impractical, too.

But no such authorizing resolutions were ever enacted after the passage of the WPR in 1973. Despite recognizing the issue, Congress’s reluctance to pass such standing authorizations is, perhaps, obvious: If the point of the WPR was to tighten congressional control over the use of force, passing standing resolutions would seemingly defeat that goal. If anything, the cure could be worse than the disease: When a president acted unilaterally, Congress could at least hold the absence of legislative approval over the executive’s head; a standing, bulletproof authorization, by contrast, would have effectively removed the stops on presidential action—or perhaps even emboldened the president to intervene in a bigger way than he would without express congressional backing. The executive branch didn’t push for standing legislative force authorizations, either, probably among other reasons because any divisive legislative debates would have made the commitment problem even worse. It is thus unsurprising that Congress never utilized the solution proposed by Bickel and Javits and envisioned by other WPR backers. Nevertheless, this left the now-widened commitment gap unresolved. 

This fact was not lost on U.S. allies, as several expressed their fear over the implications of the act. First and foremost, of course, was South Vietnam, but South Korea, Thailand, and the Philippines also expressed doubts about the U.S. alliance commitment post-1973. This meant that the executive branch needed to find another way to bridge the commitment gap: It had to restore an image of an imperial presidency in the eyes of allies and adversaries by demonstrating that it would not be burdened by the new WPR or other congressional restrictions. The Ford administration in 1975, for example, specifically averred an inherent presidential power to “carry out the terms of security commitments contained in treaties.” (An extensive 1993 Office of Legal Counsel opinion on the WPR also essentially endorsed the notion that the president may use force in defense of allies but raised questions about the outer bounds of that authority, especially if it involved prolonged, major war.) Talk is cheap, however, so ultimately the administration faced strategic pressures to prove the executive branch was not “hamstrung[.]” For example, in ordering a forceful response to the capture of the SS Mayaguez, Ford believed the American action demonstrated the president’s ability to act when needed: “We perhaps overreacted, to show the Koreans and other [allies] our resolve. … There were legislative restrictions imposed in the 1973 act and the War Powers Act, which some said meant the President couldn't act. This showed we could and did and showed the world we were’t hamstrung.” Hence, Ford’s decision to act decisively and overwhelmingly in the episode was undertaken, at least partially, with an eye toward reassuring American allies of the president’s ability to react swiftly in a crisis.

The WPR's history thus suggests that war powers and alliance commitments are entwined. While the drafters of the WPR clearly recognized that the credibility of extended deterrence and ally reassurance would be a problem under the act, Congress subsequently did not directly address the issue, which in turn put pressure back on presidents to act in ways that run contrary to the purposes of the WPR. Congress created a vacuum, and the president was forced to fill it once again.

Implications for War Powers Reform

In current debates mentioned above about how war powers and alliances intersect in important ways, there are essentially four main legal/policy orientations one might take: First, there are those who want to tighten legislative checks on war powers and who also want to pull back U.S. alliance responsibilities. For them, the tension between war powers checks and alliance commitment is not much of an issue. They often think the bigger problem is too much commitment, not too little. Second, there are presidential unilateralists who likewise want to weaken U.S. alliances, but for them presidential power is useful for American retrenchment rather than commitment. For them, the commitment gap is likewise solved by simply reducing commitments. Third, there are those who, by contrast, support strong U.S. alliance commitments but who tolerate presidential unilateralism. For them, the latter supports the former: An imperial presidency permits effective deterrence and reassurance. 

Finally, there are those who support tight legislative checks and strong alliances. This would include those who support WPR reform to make it more restrictive and enforceable and who also believe that the United States should maintain its global leadership role in sustaining alliances. For them, the question remains how to square the former with the latter. One might suppose that the appropriate path is for Congress to wait until crises or attacks occur and then pass specific force authorizations to deal with them case-by-case, but (for reasons that will be discussed in a future paper) we are skeptical that this approach will be sufficiently credible in adversaries’ and allies’ eyes. The point of U.S. alliances is to provide deterrence and stability, and it will be difficult for Congress to signal its commitment with requisite strength and clarity. Passing standing AUMFs would also seem to be a nonstarter for the historical reasons mentioned above, not to mention that doing so for some alliances but not others would entail its own problems.

Hence, those in the last camp need to squarely address the commitment gap in considering any potential war powers reform, and explain how they propose resolving it. No doubt, alliances today work differently than they did in the Cold War, especially as the United States works to rebalance defense burdens with many partners, but the United States remains the indispensable security guarantor in these relationships. Because alliances still require effective U.S. commitment, one of the solutions introduced above—or perhaps there are others—needs to be part of any effective war powers reform. Congress could legislate commitment; the president could continue to assert it; the president, perhaps with Congress, could tie the United States’ hands through things like placing troops in harm’s way; or the U.S. could loosen its alliance commitments and accept the foreign-policy consequences. Each of these solutions has its downsides. One way or another, though, robust alliance commitments will likely involve retaining in the president’s hands broad authority to act militarily in defense of allies.