War Powers Resolution

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The War Powers Act of 1973 is a United States federal law providing that the President can send U.S. armed forces into action abroad only by authorization of Congress or if the United States is already under attack or serious threat. The War Powers Resolution requires that the president notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days then a further 30 day withdrawal period, without an authorization of the use of military force or a declaration of war.

Contents

[edit] History

Under the United States Constitution, war powers are divided. Congress has the power to declare war, raise and support the armed forces, and control the war funding (Article I, Section 8), while the President is commander-in-chief (Article II, Section 2). It is generally agreed that the commander-in-chief role gives the President power to repel attacks against the United States and makes the President responsible for leading the armed forces. In addition and as with all acts of the Congress, the President has the right to sign or veto congressional acts, such as a declaration of war.

During the Korean and Vietnam wars, the United States found itself involved for many years in situations of intense conflict without a declaration of war. Many members of Congress became concerned with the erosion of congressional authority to decide when the United States should become involved in a war or the use of armed forces that might lead to war. The War Powers Resolution was passed by both the House of Representatives and Senate but was vetoed by President Richard Nixon. By a two-thirds vote in each house, Congress overrode the veto and enacted the joint resolution into law on November 7, 1973.

Presidents have submitted 118 reports to Congress as a result of the War Powers Resolution, although only one (the Mayagüez incident) cited Section 4(a)(1) or specifically stated that forces had been introduced into hostilities or imminent danger.

Congress invoked the War Powers Resolution in the Multinational Force in Lebanon Resolution (P.L. 98-119), which authorized the Marines to remain in Lebanon for 18 months. In addition, P.L. 102-1, authorizing the use of U.S. armed forces concerning the Iraqi aggression against Kuwait, stated that it constituted specific statutory authorization within the meaning of the War Powers Resolution.

On November 9, 1993, the House used a section of the War Powers Resolution to state that U.S. forces should be withdrawn from Somalia by March 31, 1994; Congress had already taken this action in appropriations legislation. More recently under President Clinton, war powers have been at issue in former Yugoslavia/Bosnia/Kosovo, Iraq, and Haiti, and under President George W. Bush in responding to terrorist attacks against the U.S. after September 11, 2001. After combat operations against Iraqi forces ended on February 28, 1991, the use of force to obtain Iraqi compliance with United Nations resolutions remained a War Powers issue, until the enactment of the Authorization for Use of Military Force Against Iraq (P.L. 107-243), in October 2002.[1]

[edit] Questions regarding constitutionality

See also: Separation of powers under the United States Constitution

The War Powers Resolution has been controversial since it became law,[2] and every President since its passage has treated it as unconstitutional.[3] The War Powers Resolution has been violated a number of times with little attention by media outlets.[4][5][6]

Because it limits the President's authority in the use of force without an official resolution or declaration of war by Congress, there is controversy as to whether the provisions of the resolution are consistent with the Constitution. The reports to Congress required of the President have been drafted to state that they are "consistent with" the War Powers Resolution rather than "pursuant to" so as to take into account the Presidential position that the Resolution is unconstitutional.

One argument for the unconstitutionality of the War Powers Resolution, Philip Bobbitt's in "War Powers: An Essay on John Hart Ely's War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath," Michigan Law Quarterly 92, no. 6 (May 1994): 1364–1400, runs as follows: "The power to make war is not an enumerated power" and the notion that to "declare" war is to "commence" war is a "contemporary textual preconception"; the Framers of the Constitution believed[citation needed]that statutory authorization was the route by which the United States would be committed to war, and that 'declaration' was meant for only[citation needed] total wars, as shown by the history of the Quasi-War with France (1798–1800); in general, constitutional powers are not so much separated as "linked and sequenced"; Congress's control over the armed forces is "structured" by appropriation, while the president commands; thus the act of declaring war should not be fetishized. Bobbitt, also argues that "A democracy cannot ... tolerate secret policies" because they undermine the legitimacy of governmental action.

A second constitutionality argument concerns a possible breach of the 'separation of powers' doctrine, and whether this Resolution changes the balance between the Legislative and Executive functions. The President is bound by an Oath of Office: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and to the best of my ability; preserve, protect, and defend the Constitution of the United States." (US Constitution, Article 2, Section 1, Clause 8). The several members of Congress are also so bound by an Oath of Office: "I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God." (US Constitution, Article 6, Clause 3; US Code, Title 5, §3331.) This type of constitutional controversy is similar to one that occurred under President Andrew Johnson with the Tenure of Office Act (1867). In that prior instance, the Congress passed a law (over the veto of the then-President) that required the President to secure Congressional approval for the removal of Cabinet members and other executive branch officers. The Constitutionality or the lack thereof of that Act was never comprehensively decided upon in the several Courts, however, when the Act was violated by Johnson, the House of Representatives impeached him; action in the Senate to remove him failed by one vote.

Here, the separation of powers issue is whether the War Powers Resolution requirements for Congressional approval and Presidential reporting to Congress change the constitutional balance established in Articles I and II, namely that Congress is explicitly granted the sole authority to declare war, "make Rules for the Government and Regulation of the land and naval forces" (Article 1, Section 8), and to control the funding of those same forces, while the Executive allegedly has inherent authority as Commander in Chief. This argument does not address the other reporting requirements imposed on other executive officials and agencies by other statutes, nor does it address the provisions of Article I, Section 8 that explicitly gives Congress the authority to "make Rules for the Government and Regulation of the land and naval Forces."

There is also an unresolved legal question, discussed by Justice White in INS v. Chadha of whether a "key provision of the War Powers Resolution", namely 50 U.S.C. 1544(c), constitutes an improper legislative veto. (See Chahda, 462 U.S. 919, 971). That section 1544(c) states "such forces shall be removed by the President if the Congress so directs by concurrent resolution". Justice White argues in his dissent in Chadha that, under the Chadha ruling, 1544(c) would be a violation of the Presentment Clause. The majority in Chadha does not resolve the issue. Justice White does not address or evaluate in his dissent whether that section would fall within the inherent Congressional authority under Article I Section 8 to "make Rules for the Government and Regulation of the land and naval Forces."

[edit] See also

[edit] Footnotes

  1. ^ 107th Congress (10 October 2002). "Authorization for Use of Military Force Against Iraq Resolution of 2002" (text). United States Government Printing Office. http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_public_laws&docid=f:publ243.107. Retrieved on 2008-12-08. 
  2. ^ "The war powers resolution". US Department of State Bulletin. 1988-09-15. http://findarticles.com/p/articles/mi_m1079/is_n2140_v88/ai_6876296. Retrieved on 2008-07-09.  "The War Powers Resolution has been controversial from the day it was adopted over President Nixon's veto. Since 1973, executive officials and many Members of Congress have criticized various aspects of the resolution repeatedly."
  3. ^ Baker III, James A.; Warren Christopher (July 8, 2008). "Put War Powers Back Where They Belong". New York Times. http://www.nytimes.com/2008/07/08/opinion/08baker.html. Retrieved on 2008-07-09.  "We believe our proposal is good for the presidency because it would eliminate a law that every president since Richard Nixon has treated as unconstitutional..."
  4. ^ http://www.fair.org/index.php?page=1782
  5. ^ http://www.themoderntribune.com/iraq_war_violating_the_war_powers_act.htm
  6. ^ http://www.globalsecurity.org/military/library/report/crs/ib81050.pdf

[edit] References

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[edit] External links

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