Bench Memos

Very Curious, George

I greatly admire George Will, whose work I have been reading since my college days, and I finally had the pleasure of meeting him in December.  But as a commentator over roughly four decades, he has written at least 3,000 columns by my reckoning, and perhaps it is not so surprising if he has, at different times, expressed opinions that do not comfortably coexist when placed side by side.  Or so I thought when reading his column yesterday, which concerns the War Powers Resolution of 1973, and President Obama’s disregard of it in the current Libyan adventure.  Here is Will yesterday:

Enacted in 1973 over President Nixon’s veto, the WPR may or may not be wise. It is, however, unquestionably a law, and Barack Obama certainly is violating it.

But here is George Will on the same subject in his column of September 15, 1983, on the occasion of President Reagan’s Lebanese adventure:

President Nixon was wrong to veto the War Powers Act, which Congress passed over his veto in 1973.  A veto was too good for it.  He should have mailed it back to Capitol Hill unsigned, with postage due, and with a note saying that although it always is entertaining to read Congress’ opinions about constitutional construction, the Constitution clearly vests in the president the power to control the armed forces.

This act, the most praised and foolish legislation of the 1970s, is in the news because Marines are in Lebanon. . . .

Congress’ novel interpretation of the president’s powers as commander-in-chief is rendered implausible by hundreds of episodes, from the republic’s earliest days to today.  Either Congress was wrong in its 1973 venture into constitutional construction, or most presidents–including all the liberal pin-ups, from Teddy Roosevelt and Woodrow Wilson through FDR and JFK–have behaved unconstitutionally. . . .

By the end of the column Will was calling the WPR “a dangerous and unconstitutional fiasco.”

He returned to the subject in his column of November 15, 1990, during the Desert Shield prelude to the first President Bush’s Iraq war, a war about which Will expressed his doubts and yet still said this:

The War Powers Act is of dubious constitutionality and cumbersome formality, and the president’s war of nerves with Iraq should not be undercut by a clock controlling when Congress must ratify or reject Desert Shield.  And any congressional debate may muddy the president’s message of resolve to Iraq.

And here, finally, is George Will’s column of September 5, 1999, mostly concerning another subject entirely, but remarking in passing on several “laws passed in the spasm of post-Watergate moralizing”:

The War Powers Resolution, with its baroque provisions for Congress to authorize and terminate military operations, is a dead letter, having been disregarded as unworkable and unconstitutional by every president since the resolution was passed over President Nixon’s veto in 1973.

So an act of Congress so self-evidently absurd, according to the Will of 1983, that it didn’t deserve the dignity of a veto, and which was still at least “of dubious constitutionality” according to the Will of 1990, and was furthermore, at least practically speaking, “a dead letter” according to the Will of 1999, is now, according to the Will of 2011, “unquestionably a law” that the president is violating.  How did this evolution come about?

In his latest column, Will accuses liberals of being “situational ethicists regarding presidential warmaking.”  At least we can say of George Will that his partisanship in favor of presidential power has not exactly tracked with Republican presidencies, nor his partisanship against it with Democratic presidencies.  But he plainly has his own consistency problems.

Will concludes his Sunday column thus:

“No president,” says Sen. John McCain, “has ever recognized the constitutionality of the War Powers Act, and neither do I.  So I don’t feel bound by any deadline.”  Oh?  No law is actually a law if presidents and senators do not “recognize” it?  Now, there is an interesting alternative to judicial review, and an indicator of how executive aggrandizement and legislative dereliction of duty degrade the rule of law.

This is the strangest turn of all in George Will’s evolution on this subject.  If a president considers a legislative encroachment on his power to be unconstitutional, disregarding the act is exactly what he is bound to do by his own oath of office.  In the case of the War Powers Resolution, moreover, several lower courts have held that it presents a political question that is not subject to judicial review.  In light of all this, isn’t it fair to say that the WPR is only “questionably” a law at all?  When did George Will come to believe that the Constitution means whatever the judiciary says it means?

The constitutional case against the War Powers Resolution can be made from two directions: first, that it implicitly blesses (temporary) presidential warmaking that the Constitution does not authorize and for which Congress cannot give blanket advance permission; and second, that it subjects legitimate presidential warmaking to both active and passive statutory constraint that is itself unconstitutional, if the president is acting legitimately.  There is no insuperable difficulty in holding both these views at once.

Or one can simply blow hot and cold on the constitutionality of the act, depending on whether one approves of the wars immediately at hand.  It’s disappointing to conclude that this is the pattern for George Will.

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