war powers

War Powers Resolution

The War Powers Act of 1973 also referred to as the War Powers Resolution, is a resolution of the Congress of The United States of America that stated that the President of The United States of America can send armed forces into action abroad only by authorization of Congress or if the United States of America is already under attack or serious threat. The War Powers Act 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 without an authorization of force or a declaration of war.


Under the United States Constitution, war powers are divided and not equal. Congress has the power to declare war and raise and support the armed forces, and control the funding of the war (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 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 Representatives achieved the two-thirds vote 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On November 9, 1993, the House used a section of the War Powers Resolution to state that U.S. forces should be withdrawn from Somalia by March 31, 1994; Congress had already taken this action in appropriations legislation.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 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 U.N. 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.

Questions regarding constitutionality

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

Because it limits the Commander in Chief'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 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, and whether this Act 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). 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 Legislative branch attempted to control the removal of Executive branch officers. Here, the separation of powers issue is whether the War Powers Resolution requirements for Congressional approval and Executive 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 while the Executive has inherent authority as Commander in Chief. This argument does not address the other reporting requirements imposed in executive officials and agencies by other statutes, nor does it address the provisions of Article I Section 8 that give Congress the authority to "make Rules for the Government and Regulation of the land and naval Forces". The argument raises the issue of the executive's inherent authority as Commander in Chief, without addressing whether (or when) any other military commanders may ignore such rules, or whether (and when) only the Commander in Chief would not be bound by such rules. The US Supreme Court has not ruled on these issues.

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."

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