War Powers Resolution

The War Powers Act of 1973 (Public Law 93-148) limits the power of the President of the United States to wage war without the approval of Congress. The War Powers Act of 1973 is also referred to as the War Powers Resolution (Sec. 1).

Provisions

The purpose of the War Powers Resolution is to ensure that Congress and the President share in making decisions that may get the U.S. involved in hostilities. Portions of the War Powers Resolution require the President to consult with Congress prior to the start of any hostilities as well as regularly until U.S. armed forces are no longer engaged in hostilities (Sec. 3); and to remove U.S. armed forces from hostilities if Congress has not declared war or passed a resolution authorizing the use of force within 60 days (Sec. 5(b)). Following an official request by the President to Congress, the time limit can be extended by an additional 30 days (presumably when "unavoidable military necessity" requires additional action for a safe withdrawal).

History

Under the Constitution, war powers are divided. Congress has the power to declare war and raise and support the armed forces (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 him responsible for leading the armed forces. 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 BOOB 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 Senate and the House of Representatives achieved the 2/3 majority required to pass this joint resolution over President Nixon's veto on November 7, 1973. Presidents have submitted 118 reports to Congress as a result of the War Powers Resolution, although only one (the Mayaguez situation) 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, war powers have been at issue in former Yugoslavia/Bosnia/Kosovo, Iraq, Haiti, and 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 U.N. resolutions remained a War Powers issue, until the enactment of P.L. 107-243, in October 2002.[1]

The US government website, above, is a link to P.L. 107-243, which is entitled "Authorization for Use of Military Force Against Iraq Resolution of 2002." Section 3(a) of the Authorization to Use Military Force "authorizes the use of all necessary means to (1) defend the national security of the United States against the continuing threat posed by Iraq; and, (2) to enforce United Nations Security Council Resolution 660 (1990)." The Authorization to Use Military Force is dated October 2, 2002, five months before the invasion of Iraq.

Thus, Congress authorized the use of military force for the express purpose of defending the national security of the United States against the continuing threat posed by Iraq, as well as to enforce UN resolutions.

The regime of Saddam Hussein was defeated by the United States in March 2003, five months after Congress authorized the President to use military force against Iraq in October 2002.

The President has inherent powers as Commander-in-Chief to respond to acts of war perpetrated against the United States. Once Congress granted war power to defend the United States and enforce UN resolutions in the AUMF in October 2002, the President was authorized to use force as seems in his best discretion to achieve the results of the AUMF. There is no statutory, Constitutional or traditional basis that requires Congressional oversight of the Commander-in-Chief's authority to conduct war.

The president, as Commander-in-Chief, is the sole arbiter of what is "appropriate" and "necessary," once a war begins. ^{[citation needed]}

Once Congress granted the President the authority to use military force as it did in the AUMF, Congress may not micro-manage the affairs of the conduct of that war. The only method that Congress may lawfully employ is the revocation of the grant of its original authority.

As of April of 2007, Congress has not rescinded this authority that was granted to the President.

Basis of Legality

There remain underlying questions about its constitutionality (though not a formal declaration of war) consistent with the provisions of the resolution. 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 that statutory authorization was the route by which the United States would be committed to war, and that 'declaration' was meant for only 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, the nephew of Lyndon Johnson, 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. The legislature may be impeding the executive in carrying out the Oath of Office. "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability; preserve, protect, and defend the Constitution of the United States." (US Constitution, Article 2, Section 1, Clause 8) This type of constitutional controversy is similar to one that occurred under President Andrew Johnson with the Tenure of Office Act (1867). In that instance, the Legislative branch attempted to control the removal of Executive branch officers.

IRAQ LIBERATION ACT OF 1998:

In 1998 both houses of Congress (at the time, both controlled by Republicans) created the "Iraq Liberation Act of 1998" (Sponsored by Rep Gilman) to authorize the president (then Bill Clinton) to remove Saddam Hussein from office and put a democracy in Iraq. The act severely limited President Clinton's methods to remove Saddam from power. It did not authorize Clinton to use military force for this purpose. It was designed to aid Iraqi insurgents to risk their own lives and take control of their own country. The president was required to inform Congress within 15 days before giving aid (funding TV or radio propaganda, humanitarian aid, military training, etc). President Clinton signed it into law.

AUTHORIZATION FOR USE OF MILITARY FORCE IN AFGHANISTAN, JANUARY 3, 2002 (SJ RES 23):

After the 911 attack, the president (then Republican George W. Bush) had automatic Constitutional authority to stop international terrorism directed against the United States. Both houses of Congress (Republican-controlled House, Democrat-controlled Senate) issued this "statutory authorization" (based upon Section 5(b) of the War Powers Resolution) for the use of military force, in Afghanistan, because they claimed that, after the 911 attack, the Al Qaeda, and any person or nation (such as the Taliban leaders of Afghanistan) who allowed them on their soil or aided their cause, represented a continuing "threat to national security and foreign policy of the United States."

AUTHORIZATION FOR THE USE OF MILITARY FORCE AGAINST IRAQ, H.J. Res. 114, Public Law 107-243, 107th Congress, OCTOBER 16, 2002:

Joint sessions of Congress (Republican-controlled House, Democrat-controlled Senate) asked Republican President George W. Bush to "take appropriate action" to "bring Iraq into compliance with its international obligations."

In 1990 and 1991, a variety of UN Security Council Resolutions and the US Congress authorized the use of military force in Iraq.

The Authorization of Military Force in Iraq also included a reference to the "Iraq Liberation Act of 1998" (Public Law 105-338) calling for the replacement of Saddam Hussein by a democratic government.

On December 20, 2005, ABC News reported that vice-president Dick Cheney had described the War Powers Resolution as an "infringement on the authority of the president." [2]

References

Richard F. Grimmett "War Powers Resolution: Presidential Compliance" Congressional Research Service Report. Updated February 14, 2006

War Powers Act of 1973 (Public Law 93-148) http://www.thecre.com/fedlaw/legal22/warpow.htm

Iraq Liberation Act of 1998, H.R.4655 Public Law: 105-338 (10/31/98) http://www.iraqwatch.org/government/US/Legislation/ILA.htm

Authorization For the Use of Military Force in Afghanistan in 2002 (date corrected), SJ RES 23 http://thomas.loc.gov/cgi-bin/query/z?c107:S.J.RES.23.ENR

AUTHORIZATION FOR THE USE OF MILITARY FORCE AGAINST IRAQ, H.J. Res. 114, OCTOBER 16, 2002 http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_public_laws&docid=f:publ243.107

Congress and the presidency share war power, but the power of Congress is greater than the power of the president. If Congress says "no" the President must comply. International laws also take precedence over the president's war power. http://www.acslaw.org/pdf/Kinkopf-Surge.pdf

Hamdi v. Rumsfeld (I and II): http://pacer.ca4.uscourts.gov/opinion.pdf/027338.P.pdf.

External links

Provisions

History

Basis of Legality

See also

References

External links