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War Powers Resolution

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"War Powers Act" redirects here. For other uses, see War Powers Act of 1941.
War Powers Resolution
Great Seal of the United States
Long titleJoint resolution concerning the war powers of Congress and the President.
Enacted bythe 93rd United States Congress
Citations
Public lawPub. L.Tooltip Public Law (United States) 93–148
Statutes at Large87 Stat. 555
Legislative history
  • Introduced in the House as H.J.Res. 542 by Clement J. Zablocki (D-WI) on May 3, 1973
  • Committee consideration by House Foreign Affairs
  • Passed the House on July 18, 1973 (244–170)
  • Passed the Senate on July 20, 1973 
  • Reported by the joint conference committee on October 4, 1973; agreed to by the Senate on October 10, 1973 (75–20) and by the House on October 12, 1973 (238–123)
  • Vetoed by President Richard Nixon on October 24, 1973
  • Overridden by the House on November 7, 1973 (284–135)
  • Overridden by the Senate and became law on November 7, 1973 (75–18)
U.S. congressional opposition
to American involvement in
wars and interventions
United States
1812 North America
House Federalists’ Address
1847 Mexican–American War
Spot Resolutions
1917 World War I
Filibuster of the Armed Ship Bill
1935–1939
Neutrality Acts
1935–1940
Ludlow Amendment
1970 Vietnam
McGovern–Hatfield Amendment
1970 Southeast Asia
Cooper–Church Amendment
1971 Vietnam
Repeal of Tonkin Gulf Resolution
1973 Southeast Asia
Case–Church Amendment
1973
War Powers Resolution
1974
Hughes–Ryan Amendment
1976 Angola
Clark Amendment
1982 Nicaragua
Boland Amendment
2007 Iraq
House Concurrent Resolution 63
2011 Libyan War
House Joint Resolution 68
2013 Syrian Civil War
Syria Resolution
2018–2019 Yemen
Yemen War Powers Resolution

The War Powers Resolution of 1973 (50 U.S.C. 1541-1548)[1] is a federal law intended to check the President's power to commit the United States to an armed conflict without the consent of Congress. The resolution was adopted in the form of a United States Congress joint resolution; this provides that the President can send U.S. armed forces into action abroad only by authorization of Congress or in case of "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces."

The War Powers Resolution requires the President to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30 day withdrawal period, without an authorization of the use of military force or a declaration of war. The resolution was passed by two-thirds of Congress, overriding a presidential veto.

The War Powers Resolution was disregarded by President Reagan in 1981 by sending military to El Salvador and later the Contras in Nicaragua, by President Clinton in 1999, during the bombing campaign in Kosovo, and by President Obama in 2011, when he did not seek congressional approval for the attack on Libyan forces, arguing that the Resolution did not apply to that action. All incidents have had congressional disapproval, but none have had any successful legal actions taken against the president for violations.[2][3] All presidents since 1973 have declared their belief that the act is unconstitutional. [4][5]

History

Under the United States Constitution, war powers are divided. Congress has the power to declare war, raise and support the armed forces, control the war funding (Article I, Section 8), and has "Power … to make all Laws which shall be necessary and proper for carrying into Execution … all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof", while the President is commander-in-chief of the military (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[6][7] 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 130[8] reports to Congress as a result of the War Powers Resolution, although only one (the Mayagüez incident) cited Section 4(a)(1) and specifically stated that forces had been introduced into hostilities or imminent danger.

Congress invoked the War Powers Resolution in the Multinational Force in Lebanon Act (P.L. 98-119), which authorized the Marines to remain in Lebanon for 18 months during 1982 and 1983. In addition, the Authorization for Use of Military Force Against Iraq Resolution of 1991 (Pub. L.Tooltip Public Law (United States) 102–1) which authorized United States combat operations against Iraqi forces during the 1991 Gulf War, 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 were 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. "[I]n 1999, President Clinton kept the bombing campaign in Kosovo going for more than two weeks after the 60-day deadline had passed. Even then, however, the Clinton legal team opined that its actions were consistent with the War Powers Resolution because Congress had approved a bill funding the operation, which they argued constituted implicit authorization. That theory was controversial because the War Powers Resolution specifically says that such funding does not constitute authorization."[9] Clinton's actions in Kosovo were challenged by a member of Congress as a violation of the Wars Power Resolution in the D.C. Circuit case Campbell v. Clinton, but the court found the issue was a non-justiciable political question.

After the 1991 Gulf War, the use of force to obtain Iraqi compliance with United Nations resolutions, particularly through enforcement of Iraqi no-fly zones, remained a war powers issue. In October 2002 Congress enacted the Authorization for Use of Military Force Against Iraq Pub. L.Tooltip Public Law (United States) 107–243 (text) (PDF) which authorized President George W. Bush to use force as necessary to defend the United States against Iraq and enforce relevant United Nations Security Council Resolutions.[10]

May 20, 2011, marked the 60th day of US combat in Libya (as part of the UN resolution) but the deadline arrived without President Obama seeking specific authorization from the US Congress.[11] President Obama, however, notified Congress that no authorization was needed,[12] since the US leadership was transferred to NATO,[13] and since US involvement is somewhat limited. On Friday, June 3, 2011, the US House of Representatives voted to rebuke President Obama for maintaining an American presence in the NATO operations in Libya, which they considered a violation of the War Powers Resolution.[14][15]

Questions regarding constitutionality

See also: Separation of powers under the United States Constitution

The War Powers Resolution has been controversial since it was passed.[16] In passing the resolution, Congress specifically cites the Necessary and Proper Clause for its authority.[17] Under the Necessary and Proper Clause, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.

Because the Constitution limits the President's authority in the use of hugs without a declaration of war by Congress, there is controversy as to whether the provisions of the resolution are consistent with the Constitution. Presidents have therefore drafted reports to Congress required of the President 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 by Philip Bobbitt[18] argues "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". Bobbitt contends that 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 also argues that "A democracy cannot ... tolerate secret policies" because they undermine the legitimacy of governmental action.

A second argument concerns a possible breach of the 'separation of powers' doctrine, and whether the resolution changes the balance between the Legislative and Executive functions. 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 Act was not declared unconstitutional by the Supreme Court of the United States until 1926.[19] When Andrew Johnson violated the Act, 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 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".

The constitution specifically states that Congress is authorized "to provide and maintain a Navy" (Article 1 Section 8). The idea of "maintenance" of a Navy implies that Naval Forces would be a permanent fixture of national defense. Two types of Land Forces are described by the Constitution (Article 1 Section 8): the Militia (armed citizenry organized into local defense forces and state volunteer regiments) which Congress can "call forth" and prescribe the "organizing, arming, and disciplining [training]" of, as Congress did in the Militia acts of 1792; and the Army, which Congress can "raise and support", through regular appropriation acts limited to no more than two years. This division matches how the Revolutionary War was fought, by the Continental Army, raised and supported by the Continental Congress, and local Militias and Volunteer Regiments, raised by the separate Colonies. After the war, under the Articles of Confederation, a small standing Army, the First American Regiment was raised and gradually increased in size over time by Congress before, following the Constitution's ratification, being transformed into the Regular Army. The availability of a standing Army, and the President of the United States being authorized as "Commander in Chief", implies his ability as a military commander to employ forces necessary to fulfill his oath to defend the constitution.

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 Chadha, 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".

See also

Footnotes

  1. ^ Full text of the War Powers Resolution (50 U.S.C 1541–1548)
  2. ^ Greenwald, Glen (June 25, 2011). "Congress vs. the president on war powers". Salon.
  3. ^ Library of Congress War Powers Reference [1], Library of Congress
  4. ^ Lithwick, Dahlia, "Wrestling Over War Powers", Newsweek, July 12, 2008
  5. ^ Rumsfeld, Donald, Known and Unknown: A Memoir, Penguin, 2011. Cf. especially Chapter 1.
  6. ^ 2 The Records of the Federal Convention of 1787, at 318-19 (Max Farrand ed., rev. ed. 1966)(1911)
  7. ^ http://www.justice.gov/olc/warpowers925.htm
  8. ^ U.S. Library of Congress. Congressional Research Service. War Powers Resolution: Presidential Compliance. Washington: The Service, 2011 (RL33532), Summary.
  9. ^ Savage, Charlie (2011-04-01) Clock Ticking on War Powers Resolution, New York Times
  10. ^ 107th Congress (10 October 2002). "Authorization for Use of Military Force Against Iraq Resolution of 2002" (text). United States Government Printing Office. Retrieved 2008-12-08.{{cite web}}: CS1 maint: numeric names: authors list (link)
  11. ^ Libya War Deadline Arrives
  12. ^ "White House on War Powers Deadline: 'Limited' US Role in Libya Means No Need to Get Congressional Authorization", ABC News, May 20, 2011
  13. ^ "Libya: Nato assumes control of military operation". BBC News. March 27, 2011.
  14. ^ Dinan, Stephen, "Bipartisan Congress rebuffs Obama on Libya mission". The Washington Times, Saturday, June 4, 2011
  15. ^ Steinhauer, Jennifer (June 3, 2011). "House Rebukes Obama for Continuing Libyan Mission Without Its Consent". The New York Times.
  16. ^ "The war powers resolution". US Department of State Bulletin. 1988-09-15. Retrieved 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 law repeatedly."
  17. ^ War Powers Joint Resolution, §2(b).
  18. ^ "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.
  19. ^ "Myers v. United States, 272 U. S. 52 (1926)".

References

External links

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