WAR POWERS ACT
Overview
This guide is intended to serve as an introduction to research on the War Powers
Resolution, Public Law 93-148, 87 Stat. 555, passed over President Nixon's veto
on November 7, 1973. The War Powers Resolution is sometimes referred to as
the War Powers Act, its title in the version passed by the Senate. This Joint
Resolution is codified in the United States Code ("USC") in Title 50, Chapter 33,
Sections 1541-48.
The term "Resolution" can be misleading; this law originated as a Joint
Resolution and was passed by both Houses of Congress pursuant to the
Legislative Process, and has the same legal effect as a Bill which has passed
and become a law. For more information on Bills and Joint Resolutions see this
explanation of Congressional Forms of Action.
The Constitution of the United States divides the war powers of the federal
government between the Executive and Legislative branches: the President is
the Commander in Chief of the armed forces (Article II, section 2), while
Congress has the power to make declarations of war, and to raise and support
the armed forces (Article I, section 8). Over time, questions arose as to the extent
of the President's authority to deploy U.S. armed forces into hostile situations
abroad without a declaration of war or some other form of Congressional
approval. Congress passed the War Powers Resolution in the aftermath of the
Vietnam War to address these concerns and provide a set of procedures for both
the President and Congress to follow in situations where the introduction of U.S.
forces abroad could lead to their involvement in armed conflict.
Conceptually, the War Powers Resolution can be broken down into several
distinct parts. The first part states the policy behind the law, namely to "insure
that the collective judgment of both the Congress and the President will apply to
the introduction of United States Armed Forces into hostilities," and that the
President's powers as Commander in Chief are exercised only pursuant to a
declaration of war, specific statutory authorization from Congress, or a national
emergency created by an attack upon the United States (50 USC Sec. 1541).
The second part requires the President to consult with Congress before
introducing U.S. armed forces into hostilities or situations where hostilities are
imminent, and to continue such consultations as long as U.S. armed forces
remain in such situations (50 USC Sec. 1542). The third part sets forth reporting
requirements that the President must comply with any time he introduces U.S.
armed forces into existing or imminent hostilities (50 USC Sec. 1543); section
1543(a)(1) is particularly significant because it can trigger a 60 day time limit on
the use of U.S. forces under section 1544(b).
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The fourth part of the law concerns Congressional actions and procedures. Of
particular interest is Section 1544(b), which requires that U.S. forces be
withdrawn from hostilities within 60 days of the time a report is submitted or is
required to be submitted under Section 1543(a)(1), unless Congress acts to
approve continued military action, or is physically unable to meet as a result of an
armed attack upon the United States. Section 1544(c) requires the President to
remove U.S. armed forces that are engaged in hostilities "without a declaration of
war or specific statutory authorization" at any time if Congress so directs by a
Concurrent Resolution (50 USC 1544). Concurrent Resolutions are not laws and
are not presented to the President for signature or veto; as a result the procedure
contemplated under Section 1544(c) is known as a "legislative veto" and is
constitutionally questionable in light of the decision of the United States Supreme
Court in INS v. Chadha, 462 U.S. 919 (1983). Further sections set forth
expedited Congressional procedures for considering proposed legislation to
authorize the use of U.S. armed forces, as well as similar procedures regarding
proposed legislation to withdraw U.S. forces under Section 1544(c) (50 U.S.
1545-46a).
The fifth part of the law sets forth certain definitions and rules to be used when
interpreting the War Powers Resolution (50 USC 1547). Finally, the sixth part is a
"separability provision" and states that if any part of the law is held (by a court) to
be invalid, on its face or as applied to a particular situation, the rest of the law
shall not be considered invalid, nor shall its applicability to other situations be
affected (50 USC 1548).
U.S. Presidents have consistently taken the position that the War Powers
Resolution is an unconstitutional infringement upon the power of the executive
branch. As a result, the Resolution has been the subject of controversy since its
enactment, and is a recurring issue due to the ongoing worldwide commitment of
U.S. armed forces. Presidents have submitted a total of over 120 reports to
Congress pursuant to the Resolution. Some examples of the Resolution's effect
on the deployment of U.S. armed forces include:
1975: President Ford submitted a report to Congress as a result of his order to
the U.S. armed forces to retake the Mayaguez, a U.S. merchant vessel which
had been seized by Cambodia. This report is the only report to have cited
Section 4(a)(1) (50 USC Sec. 1543(a)(1)) of the Resolution, triggering the 60-day
time limit; however the operation was completed before 60 days had expired.
1981: President Reagan deployed a number of U.S. military advisors to El
Salvador but submitted no report to Congress. Members of Congress filed a
federal lawsuit in an attempt to force compliance with the Resolution, but the U.S.
District Court hearing the suit declined to become involved in what the judge saw
as a political question, namely whether U.S. forces were indeed involved in
hostilities.
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1982-83: President Reagan sent a force of Marines to Lebanon to participate in
peacekeeping efforts in that country; while he did submit three reports to
Congress under the Resolution, he did not cite Section 4(a)(1), and thus did not
trigger the 60 day time limit. Over time the Marines came under increasing
enemy fire and there were calls for withdrawal of U.S. forces. Congress, as part
of a compromise with the President, passed Public Law 98-119 in October 1983
authorizing U.S. troops to remain in Lebanon for 18 months. This resolution was
signed by the President, and was the first time a President had signed legislation
invoking the War Powers Resolution.
1990-91: President George H.W. Bush sent several reports to Congress
regarding the buildup of forces in Operation Desert Shield. President Bush took
the position that he did not need "authority" from Congress to carry out the
United Nations resolutions which authorized member states to use "all necessary
means" to eject Iraq from Kuwait; however he did ask for Congressional
"support" of U.S. operations in the Persian Gulf. Congress passed, and the
President signed, Public Law 102-1 authorizing the President to use force
against Iraq if the President reported that diplomatic efforts had failed. President
Bush did so report, and initiated Operation Desert Storm.
1993-99: President Clinton utilized United States armed forces in various
operations, such as air strikes and the deployment of peacekeeping forces, in the
former Yugoslavia, especially Bosnia and Kosovo. These operations were
pursuant to United Nations Security Council resolutions and were conducted in
conjunction with other member states of NATO. During this time the President
made a number of reports to Congress "consistent with the War Powers
Resolution" regarding the use of U.S. forces, but never cited Section 4(a)(1), and
thus did not trigger the 60 day time limit. Opinion in Congress was divided and
many legislative measures regarding the use of these forces were defeated
without becoming law. Frustrated that Congress was unable to pass legislation
challenging the President's actions, Representative Tom Campbell and other
Members of the House filed suit in the Federal District Court for the District of
Columbia against the President, charging that he had violated the War Powers
Resolution, especially since 60 days had elapsed since the start of military
operations in Kosovo. The President noted that he considered the War Powers
Resolution constitutionally defective. The court ruled in favor of the President,
holding that the Members lacked legal standing to bring the suit; this decision
was affirmed by the U.S. Court of Appeals for the District of Columbia. See
Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000). The U.S. Supreme Court
refused to hear an appeal from this decision, in effect letting it stand.
2001: In the wake of the terrorist attacks on the World Trade Center and the
Pentagon, Congress passed Public Law 107-40 (PDF), authorizing President
George W. Bush to "use all necessary and appropriate force against those
nations, organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks that occurred on September 11, 2001, or
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harbored such organizations or persons, in order to prevent any future acts of
international terrorism against the United States by such nations, organizations
or persons." For the first time, "organizations and persons" are specified in a
Congressional authorization to use force pursuant to the War Powers Resolution,
rather than just nations.
2002: Congress authorized President George W. Bush to use force against Iraq,
pursuant to the War Powers Resolution, in Public Law 107-243 (PDF).
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 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 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. 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.
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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 60day 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." 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. 107-243
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, 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.
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