War Powers Resolution
Encyclopedia
The War Powers Resolution of 1973 (50 U.S.C.
Title 50 of the United States Code
Title 50 of the United States Code outlines the role of War and National Defense in the United States Code.-External links:*, via United States Government Printing Office*, via Cornell University* Appendix to Title 50, via Cornell University...

 1541-1548) is a federal law intended to check the power of the President in committing 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
Joint resolution
In the United States Congress, a joint resolution is a legislative measure that requires approval by the Senate and the House and is presented to the President for his/her approval or disapproval, in exactly the same case as a bill....

; this provides that the President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....

 can send U.S. armed forces
Military of the United States
The United States Armed Forces are the military forces of the United States. They consist of the Army, Navy, Marine Corps, Air Force, and Coast Guard.The United States has a strong tradition of civilian control of the military...

 into action abroad only by authorization of Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

 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
Declaration of war
A declaration of war is a formal act by which one nation goes to war against another. The declaration is a performative speech act by an authorized party of a national government in order to create a state of war between two or more states.The legality of who is competent to declare war varies...

. The resolution was passed by two-thirds of Congress, overriding a presidential veto.

The War Powers Resolution was disregarded by President Clinton in 1999, during the bombing campaign in Kosovo, and again by President Obama in 2011, when he did not seek congressional approval for attack on Libya, arguing that the Resolution did not apply to that action. Some presidents have declared their belief that the act is unconstitutional.

History

Under the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

, 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
Commander-in-Chief
A commander-in-chief is the commander of a nation's military forces or significant element of those forces. In the latter case, the force element may be defined as those forces within a particular region or those forces which are associated by function. As a practical term it refers to the military...

 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 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
Korean War
The Korean War was a conventional war between South Korea, supported by the United Nations, and North Korea, supported by the People's Republic of China , with military material aid from the Soviet Union...

 and Vietnam
Vietnam War
The Vietnam War was a Cold War-era military conflict that occurred in Vietnam, Laos, and Cambodia from 1 November 1955 to the fall of Saigon on 30 April 1975. This war followed the First Indochina War and was fought between North Vietnam, supported by its communist allies, and the government of...

 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
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...

 and Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...

 but was vetoed by President Richard Nixon
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...

. By a two-thirds vote in each house, Congress overrode
Veto override
A veto override is an action by legislators and decision-makers to override an act of veto by someone with such powers - thus forcing through a new decision. The power to override a veto varies greatly in tandem with the veto power itself. The U.S constitution gives a 2/3 majority Congress the...

 the veto and enacted the joint resolution into law on November 7, 1973.

Presidents have submitted 130 reports to Congress as a result of the War Powers Resolution, although only one (the Mayagüez incident
Mayagüez incident
The Mayaguez incident between the Khmer Rouge and the United States from May 12–15, 1975, was the last official battle of the Vietnam War. The names of the Americans killed, as well as those of three Marines who were left behind on the island of Koh Tang after the battle and who were subsequently...

) 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
Multinational Force in Lebanon
The Multinational Force in Lebanon was an international peacekeeping force created in 1982 and sent to Lebanon to oversee the withdrawal of the Palestine Liberation Organization...

 Act(P.L. 98-119), which authorized the Marines
United States Marine Corps
The United States Marine Corps is a branch of the United States Armed Forces responsible for providing power projection from the sea, using the mobility of the United States Navy to deliver combined-arms task forces rapidly. It is one of seven uniformed services of the United States...

 to remain in Lebanon
Lebanese Civil War
The Lebanese Civil War was a multifaceted civil war in Lebanon. The war lasted from 1975 to 1990 and resulted in an estimated 150,000 to 230,000 civilian fatalities. Another one million people were wounded, and today approximately 350,000 people remain displaced. There was also a mass exodus of...

 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
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...

, war powers were at issue in former Yugoslavia
Yugoslav wars
The Yugoslav Wars were a series of wars, fought throughout the former Yugoslavia between 1991 and 1995. The wars were complex: characterized by bitter ethnic conflicts among the peoples of the former Yugoslavia, mostly between Serbs on the one side and Croats and Bosniaks on the other; but also...

; Bosnia
Bosnian War
The Bosnian War or the War in Bosnia and Herzegovina was an international armed conflict that took place in Bosnia and Herzegovina between April 1992 and December 1995. The war involved several sides...

; Kosovo
Kosovo War
The term Kosovo War or Kosovo conflict was two sequential, and at times parallel, armed conflicts in Kosovo province, then part of FR Yugoslav Republic of Serbia; from early 1998 to 1999, there was an armed conflict initiated by the ethnic Albanian "Kosovo Liberation Army" , who sought independence...

; Iraq, and Haiti
Operation Uphold Democracy
Operation Uphold Democracy was an intervention designed to remove the military regime installed by the 1991 Haitian coup d'état that overthrew the elected President Jean-Bertrand Aristide...

, and under President George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....

 in responding to terrorist attacks against the U.S. after September 11, 2001. "[I]n 1999, President Clinton kept the bombing campaign in Kosovo
1999 NATO bombing of Yugoslavia
The NATO bombing of Yugoslavia was NATO's military operation against the Federal Republic of Yugoslavia during the Kosovo War. The strikes lasted from March 24, 1999 to June 10, 1999...

 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."

After combat operations against Iraqi forces
Gulf War
The Persian Gulf War , commonly referred to as simply the Gulf War, was a war waged by a U.N.-authorized coalition force from 34 nations led by the United States, against Iraq in response to Iraq's invasion and annexation of Kuwait.The war is also known under other names, such as the First Gulf...

 ended on February 28, 1991, the use of force to obtain Iraqi compliance with United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...

 resolutions remained a war powers issue, even with the enactment of the Authorization for Use of Military Force Against Iraq (P.L. 107-243), in October 2002.

May 20, 2011, marked the 60th day of US combat in Libya
Operation Odyssey Dawn
Operation Odyssey Dawn was the U.S. code name for the US part of the international military operation in Libya to enforce United Nations Security Council Resolution 1973. during the initial period of 19–31 March 2011, which continued afterwards under NATO command as Operation Unified Protector...

 (as part of the UN resolution) but the deadline arrived without President Obama seeking specific authorization from the US Congress. President Obama, however, notified Congress that no authorization was needed, since the US leadership was transferred to NATO, 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.

Questions regarding constitutionality

The War Powers Resolution has been controversial since it became law. In passing the law, Congress specifically cites the Necessary and Proper Clause for its authority. 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 force without a declaration of war
Declaration of war
A declaration of war is a formal act by which one nation goes to war against another. The declaration is a performative speech act by an authorized party of a national government in order to create a state of war between two or more states.The legality of who is competent to declare war varies...

 by Congress, there is controversy as to whether the provisions of the law 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 law is unconstitutional.

One argument for the unconstitutionality of the War Powers Resolution by Philip Bobbitt
Philip Bobbitt
Philip Chase Bobbitt is an American author, academic, and public servant who has lectured in the United Kingdom. He is best known for work on military strategy and constitutional law and theory, and as the author of Constitutional Fate: Theory of the Constitution , The Shield of Achilles: War,...

 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
Founding Fathers of the United States
The Founding Fathers of the United States of America were political leaders and statesmen who participated in the American Revolution by signing the United States Declaration of Independence, taking part in the American Revolutionary War, establishing the United States Constitution, or by some...

 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 war
Total war
Total war is a war in which a belligerent engages in the complete mobilization of fully available resources and population.In the mid-19th century, "total war" was identified by scholars as a separate class of warfare...

s, as shown by the history of the Quasi-War
Quasi-War
The Quasi-War was an undeclared war fought mostly at sea between the United States and French Republic from 1798 to 1800. In the United States, the conflict was sometimes also referred to as the Franco-American War, the Pirate Wars, or the Half-War.-Background:The Kingdom of France had been a...

 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 law changes the balance between the Legislative and Executive functions.
This type of constitutional controversy is similar to one that occurred under President Andrew Johnson
Andrew Johnson
Andrew Johnson was the 17th President of the United States . As Vice-President of the United States in 1865, he succeeded Abraham Lincoln following the latter's assassination. Johnson then presided over the initial and contentious Reconstruction era of the United States following the American...

 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; therefore, when the Act was violated by Johnson, the House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...

 impeached
Impeachment
Impeachment is a formal process in which an official is accused of unlawful activity, the outcome of which, depending on the country, may include the removal of that official from office as well as other punishment....

 him; action in the Senate to remove him failed by one vote
Impeachment of Andrew Johnson
The Impeachment of Andrew Johnson, 17th President of the United States, was one of the most dramatic events in the political life of the United States during Reconstruction, and the first impeachment in history of a sitting United States president....

.

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".

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
American Revolutionary War
The American Revolutionary War , the American War of Independence, or simply the Revolutionary War, began as a war between the Kingdom of Great Britain and thirteen British colonies in North America, and ended in a global war between several European great powers.The war was the result of the...

 was fought, by the Continental Army
Continental Army
The Continental Army was formed after the outbreak of the American Revolutionary War by the colonies that became the United States of America. Established by a resolution of the Continental Congress on June 14, 1775, it was created to coordinate the military efforts of the Thirteen Colonies in...

, raised and supported by the Continental Congress
Continental Congress
The Continental Congress was a convention of delegates called together from the Thirteen Colonies that became the governing body of the United States during the American Revolution....

, 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
First American Regiment
The First American Regiment was the first peacetime regular army force authorized by United States Congress after the American Revolutionary War...

 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
Presentment Clause
The Presentment Clause of the United States Constitution outlines federal legislative procedure by which bills originating in Congress become federal law in the United States.-Text:...

. 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".

External links

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