Chapter 3
War Powers
The Constitution divides the powers of war between Congress and the president. The president is chief
executive, chief diplomat, and commander in chief of the armed forces. Congress alone can declare war
and authorize the use of force, Congress alone can appropriate funds, and Congress alone can raise and
supply armies for war. The Framers of the Constitution thought it should be difficult to take the country
into war and, therefore, the power to commence war was put in the hands of those who would bear the
costs. Congress also has the power of oversight and investigation to ensure that the executive branch
faithfully implements the will of the people as expressed in legislation. When officials abuse their power,
the Constitution grants Congress the authority to impeach.
From George Washington forward, presidents have been successfully consolidating their power over
foreign affairs and the use of military force.1 The general pattern has been for Congress to cede powers to
the president in times of war and to reclaim some of them after war. Following foreign policy blunders,
Congress has an even stronger hand in reducing presidential war powers. But in the long-term give and
take, the presidency has gained more than it has lost. Even with the more egregious excesses, presidents
suffered setbacks, but the presidency overcame and continued to accumulate power.2
That there has been a shift in war powers from Congress to the president is uncontested. There is
some agreement that the shift undermines republican democracy. There is serious disagreement on how
much power a president needs in the twenty-first century. There are those who assert the continued
applicability of the Constitution and those who assert power far beyond the Constitution.
Several explanations exist for why the shift has taken place. The Framers recognized that some
qualities gave the executive advantage over representative bodies. Some arguments highlight the need for
speed. Others argue that the principal explanation for the shift is Congress’s desire to avoid risk and
accountability. Many attribute the shift from congressional government to presidential government to the
weakened parties that cannot discipline Congress against a unitary president. To explain more recent
behavior, still others point to the lack of widely agreed to post-Cold War policy objectives.
The nature of the shift is broad and deep. Authorization has shifted from Congress to the president,
as presidents since Truman have commenced military operations virtually at will or have claimed that
authority flowed from the UN or NATO. The existence of a standing military since Truman removed
Congress’s relevance in raising an army for war. Appropriation has shifted from Congress to the president,
as the executive captured the budget process in 1921, reprograms appropriated funds, and even finances
operations with funds from foreign sources. And the all-volunteer military initiated by Nixon reduced the
president’s need to consider public support. Once the president has deployed forces, Congress is left to
“support the troops but not the policy.”
The chapter begins with a review of war powers as specified in the Constitution and as elaborated in
statute. It then progresses to summarize specific uses of force with or without authority. Next, the postVietnam War Powers Resolution is summarized and is accompanied by a summary of presidential
compliance with the Resolution. The chapter concludes with items for consideration.
1 There is a rich literature on the topic of presidential war powers. The long-running classic is Edward S. Corwin, The
President: Office and Powers (New York: New York University Press, 1940) and its successor editions. The Nixon-era classic is Arthur
M. Schlesinger Jr., The Imperial Presidency (New York: Houghton Mifflin, 1973). The Clinton-era and present day authority is Louis
Fisher, Presidential War Power (Lawrence: University Press of Kansas, 1995). Two new entries of the Bush era are Frederick A. O.
Schwarz and Aziz Z. Huq, Unchecked and Unbalanced: Presidential Power in a Time of Terror (New York: New Press, 2007) and Matthew
A. Crenson and Benjamin Ginsberg, Presidential Power: Unchecked and Unbalanced (New York: W.W. Norton, 2007). Richard E.
Neustadt, Presidential Power and the Modern Presidents: The Politics of Leadership From Roosevelt To Reagan (New York: Simon & Schuster,
1991) deals with the office holder’s leadership rather than the office’s legal authorities.
2 Crenson and Ginsberg, Presidential Power, 215-279.
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Shifting War-Making Authorities
The people, through their Constitution, grant specific war making powers to Congress and the president.
The preponderance of war making powers is vested in the people’s branch. Anticipating the demands of
crises, Congress has seen fit to craft additional authorities that temporarily can be granted to the president
when necessary. After covering the constitutional and statutory authorities, this section briefly retraces the
shift from congressional to presidential war making.
Constitutional Authorities
Congress has sole authority to declare war. In war, the president is commander in chief of the armed
forces. Presidents are expected to use force to repel invasions without first asking for authority. Congress
and the people expect nothing less. These things are inarguably true. But there is much to argue about
concerning the use of armed force. The Framers’ writings give greater clarity to their original intentions.
The authority to take the nation to war was a significant subject of debate in 1787 at the Philadelphia
convention. Pierce Butler of South Carolina recommended that the president should have that authority
because he “will have all the requisite qualities and will not make war but when the nation will support it.”
Elbridge Gerry of Massachusetts countered that he “never expected to hear in a republic a motion to
empower the executive alone to declare war.” Charles Pinckney, also of South Carolina, thought the
numbers of representatives in the House were too many for such deliberations and would be too slow. He
recommended that the Senate with its greater understanding of foreign affairs would be best suited to the
task.
As the debate settled, the draft constitutional language gave Congress the power to “make war,” but
those words were quickly amended. Madison and Gerry “moved to insert ‘declare,’ striking out ‘make’ war;
leaving to the Executive the power to repel sudden attacks.” Common use at the time equated “declare”
and “commence.”3
Among the Framers, Madison favored the Congress as policy maker and, in opposition, Hamilton was
the strongest and most persistent champion of a strong executive. According to Madison, “it was
Congress’s constitutional role to determine the substance and direction of American foreign policy, while
the task of the president was limited to implementing the will of the legislature.”4 But even Hamilton
proposed that the Senate “have the sole power of declaring war” and that the executive “have the
direction of war when authorized or begun.”5 “With the war-making propensities of absolute monarchs in
mind, the framers of the Constitution took care to assign the vital foreign policy powers exclusively to
Congress.”6
The preponderance of war-making powers resides in Congress.
Article I, § 8. The Congress shall have Power To … provide for the common Defense
and general Welfare of the United States … To regulate Commerce with foreign Nations
… To define and punish Piracies and Felonies committed on the high Seas, and Offenses
against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and
make Rules concerning Captures on Land and Water; To raise and support Armies, but
no Appropriation of Money to that Use shall be for a longer Term than two Years; To
provide and maintain a Navy; To make Rules for the Government and Regulation of the
land and naval Forces; To provide for calling forth the Militia to execute the Laws of the
Union, suppress Insurrections and repel Invasions; To provide for organizing, arming,
and disciplining the Militia, and for governing such Part of them as may be employed in
the Service of the United States, reserving to the States respectively, the Appointment of
the Officers, and the Authority of training the Militia according to the discipline
3 “The War Power,” Congressional Quarterly’s Guide to Congress, Fourth Edition (Washington, D.C.: Congressional Quarterly,
Inc., 1991), 194.
4 Crenson and Ginsberg, Presidential Power, 217.
5 Schlesinger, Imperial Presidency, 3.
6 Schlesinger, Imperial Presidency, x.
War Powers | 3
prescribed by Congress; …To make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers vested by this Constitution in the
Government of the United States or in any Departmental Officer thereof.
Article I, § 9. No Money shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law;
The remaining war-making powers reside with the president as chief executive, chief diplomat, and
commander in chief of the armed forces.
Article II, § 1. The executive Power shall be vested in a President of the United States of
America.
The Framers understood that the executive uniquely possessed qualities—“unity, decision, secrecy,
dispatch, stability of purpose, special sources of information”—that were desirable in the conduct of
diplomacy.7 The Framers also understood that representative institutions, on the other hand, “drew their
strength from a mobilized public.”8 Without a mobilized public, the president rides roughshod over a
flaccid Congress.
Article II, § 2. He shall have the Power, by and with the Advice and Consent of the
Senate, to make Treaties, provided two thirds of the Senators present concur; …
Article II, § 3. He shall receive Ambassadors …
Foreign policy has both commercial and political aspects. Washington’s farewell speech characterizes a
popular sentiment of the Founders: “The great rule of conduct for us in regard to foreign nations is, in
extending our commercial relations to have with them as little political connection as possible.”9 In
accordance with that sentiment, the Constitution gives Congress the more important power to regulate
commerce with foreign nations. To the president went the power over what Washington wanted to
minimize, political relations with foreign nations. The president may make treaties, but only if two thirds
of the Senate approves.
Hamilton thought differently. The president has the initiative in foreign policy and if necessary, takes
independent action. In the extreme, he may deliver Congress a fait accompli. Presidents have behaved
more as monarchist Hamilton prescribed.
Article II, § 2. The President shall be Commander in Chief of the Army and Navy of the
United States, and of the Militia of the several States, when called into the actual Service
of the United States.
The Framers were well aware that command of military and naval forces must be guided by one. The
principle of unity of command was well understood.
The President of the United States is to be “commander-in-chief of the army and navy of
the United States …” The propriety of this provision is so evident in itself ... Of all the
cares or concerns of government, the direction of war most peculiarly demands those
qualities which distinguish the exercise of power in a single hand. The direction of war
implies the direction of the common strength; and the power of directing and employing
the common strength forms a usual and essential part of the definition of the executive
authority.10
7
Jay, Federalist 64 and Hamilton, Federalist 75.
Crenson and Ginsberg, Presidential Power, 354.
9 Schlesinger, Imperial Presidency, 3.
10 Hamilton, Federalist 74.
8
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A strong executive was necessary, not just to command the armed forces in war, but to provide the
energy necessary to overcome the inertia of the other branches.11 But that initiative was not to go
unchecked.
The Framers were well aware of the problem of too much power residing in the hands of one man or
in one department. War making was to be one of the most important powers that must be divided. The
quotations below make clear the Framers’ understanding and their intentions.
The Constitution supposes what the history of all governments demonstrates, that the
Executive is the branch of power most interested in war, and most prone to it. It has
accordingly with studied care, vested the question of war in the Legislature.12
The President is to be commander-in-chief of the army and navy of the United States. In
this respect his authority would be nominally the same with that of the king of Great
Britain, but in substance much inferior to it. It would amount to nothing more than the
supreme command and direction of the military and naval forces, as first general and
admiral of the Confederacy; while that of the British king extends to the declaring of war
and to the raising and regulating of fleets and armies – all which, by the Constitution under
consideration, would appertain to the legislature.13
To what expedient, then, shall we finally resort, for maintaining in practice the necessary
partition of power among the several departments laid down in the Constitution? …
[T]he great security against a gradual concentration of the several powers in the same
department consists in giving to those who administer each department the necessary
constitutional means and personal motives to resist encroachments of the others. …
Ambition must be made to counteract ambition.14
In the language contemporary to the constitutional debate, general war and perfect war were expressions
used to describe the condition when two states were mobilized for war. But there was also common
language used to describe limited war or imperfect war when states used military force to pursue limited
objectives. Declarations of war were associated with the former, and authorizations for the use of force
were for the latter. Both were the domain of Congress.
The logic was quickly confirmed and clarified in Supreme Court rulings. In 1800, the Supreme Court
ruled in Bas v. Tingy that only Congress could authorize war whether perfect or imperfect. “Congress is
impowered to declare a general war, or congress may wage a limited war; limited in place, in objects, and in
time.” In the 1801 Talbot v. Seeman case, Chief Justice Marshall wrote that “The whole powers of war
being, by the Constitution of the United States, vested in congress … the congress may authorize general
hostilities … or partial war.”15
Congress can place limits on its grants of authority as well. In the 1804 Little v. Barreme case, the Court
ruled that the commander in chief cannot go beyond Congress’s explicit instructions.16 Limits have
included, for example, use of forces limited to naval rather than all armed forces. In Little v. Barreme, the
limit at issue was the authority to seize ships going to French ports rather than to and from French ports.
The granting of “Letters of Marque and Reprisal” is often dismissed as an anachronism, but these are
the eighteenth-century equivalents of strikes and raids to achieve limited objectives.17 They are expressions
of coercive diplomacy and imperfect war.
11
Schlesinger, Imperial Presidency, xxvii.
James Madison, Letter to Thomas Jefferson, April 2, 1797, in James Madison: Writings, Jack N. Rakove, editor (New York:
Library of America, 1999), 586.
13 Hamilton, Federalist 69.
14 Madison, Federalist 51.
15 Schlesinger, Imperial Presidency, 22.
16 Crenson and Ginsberg, Presidential Power, 324.
17 Schlesinger, Imperial Presidency, 21.
12
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Standby Statutory Authorities
Congress has crafted extensive standby authorities for the president during a state of war or state of
national emergency. By international law, a declaration of war establishes a state of war whether or not
armed conflict is ongoing. If there is open armed conflict, whether or not war is declared, then a state of
war exists. Under a state of war, declared or not, the international laws of war are in effect. Only Congress
can declare war, but the president can declare a national emergency.
In excess of 250 laws are triggered automatically upon congressional declaration of war. The standby
authorities are largely enumerated in the Alien Enemy Act, the Trading with the Enemy Act, the National
Emergencies Act, and the International Emergency Economic Powers Act.18 These statutes give the
president expansive powers over the military, foreign trade, transportation, communications,
manufacturing, alien enemies, and more. Many are expedients that give executive branch secretaries
authority to act and then notify Congress rather than require advance authorization. Although expansive,
they are what a reasonable person would expect in a country mobilized for war.
The existence of a state of war triggers some of the standby authorities. None are automatically
triggered by a congressional authorization for the use of force. A presidential declaration of a national
emergency may trigger some. Upon declaration of an emergency, the president is subject to consultation
and review, and is required to report actions taken to Congress. The president must specify which
statutory authorities he or she intends to use prior to use. Congress can terminate a declared emergency by
joint resolution, and the declaration automatically expires in one year unless the president renews the
declaration.
Whether Imperial or Constitutional Presidency
George Washington, Abraham Lincoln, and Franklin Roosevelt wielded extraordinary powers during
times of national crisis, but they made no claims to authorities beyond those enumerated in the
Constitution.19 The president took the initiative, engaged Congress, and in extreme cases asked permission
after the fact and risked rebuke.
The classic explanation for extraconstitutional powers wielded by the chief magistrate is what John
Locke referred to as the prerogative of the crown. The Lockean prerogative is “the power to act according to
discretion for the public good, without the prescription of the law and sometimes even against it.”20
Truman was the first to claim extraconstitutional war powers. Eisenhower saw Congress as a full
partner, but inadvertently contributed to the growth of presidential war powers by establishing the
precedent of asking for and receiving a pre-authorization to use force to deal with a crisis that appeared to
be developing off China. Presidential powers grew during the Kennedy-Johnson years and peaked under
Richard Nixon. Following Nixon’s excesses, Congress’s scrambling to reclaim powers greatly contributed
to the weakness of the Carter administration. Following Carter, the Reagan administration set out to
reclaim imagined powers and presidential dominance. Congress bowed to a popular president and, in
Schlesinger’s words, showed that even a president “with only a misty understanding of issues” could
dominate Congress.21 The end of the Cold War appeared to usher in a return to constitutional democracy.
But post-Cold War presidents have continued amassing presidential powers.
Presidential historians and scholars converged on the idea of an imperial presidency toward the end
of the Nixon-Agnew administration as each was forced from office in disgrace. As the Nixon era came to
an end, Arthur Schlesinger published the 1973 classic, The Imperial Presidency. In 1998, as the House
18 Jennifer K. Elsea and Richard F. Grimmett, Declarations of War and Authorizations for the Use of Force: Historical Background and
Legal Implications, RL31133 (Washington, D.C.: Congressional Research Service, 2006), accessed on 9 October 2006,
http://www.fas.org/sgp/crs/natsec/Declarations and Authorizations.pdf.
19 Schlesinger, Imperial Presidency, xv.
20 Cited in Crenson and Ginsberg, Presidential Power, 326.
21 Schlesinger, Imperial Presidency, xvi.
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impeached Clinton, the same scholars announced the end of the imperial presidency. But by 1999 a new
imperial presidency was emergent. The imperial presidency is very much alive.22
By imperial, Schlesinger does not mean that the United States is attempting to acquire empire in the
sense of conquest or colonialism; instead, he means an unchecked president. The Constitution favored a
strong presidency and an equally “strong system of accountability.” “When the constitutional balance
shifts to the presidency, the presidency can be said to become imperial.” Schlesinger goes on to argue that
the domain of foreign policy is the “perennial threat to the constitutional balance.” At this point, the
obligatory reference must be made to Edward S. Corwin and his conclusion that the Constitution is “an
invitation to struggle for the privilege of directing American foreign policy.”23
Two modern-day schools of thought are apparent. One school favors a conservative interpretation of
the Constitution with congressional dominance in war powers. The other school favors a liberal
extrapolation granting extraconstitutional authorities to the president.
The doctrine of original intent forces interpreters of the constitutional text to seek meaning from the
intentions of the Framers, including the debates during the summer of 1787 captured in Madison’s notes
and Federalist and Anti-Federalist papers that accompanied the ratification process. Some opponents
doubt the underlying assumption that the fifty-plus men who attended the convention ever arrived at
unified intent. Textualists reject the doctrine of original intent instead following the text that is written
rather than the rationale that produced it. Conservatives tend to either textualist or intentionalist
interpretations. Leonard Levy provides the mainstream intentionalist view that “the imperial presidency
has no support in the Framer’s understanding.”24 It is exceedingly difficult to understand how presidential
war derives from a textualist or intentionalist interpretation of the Constitution. Such claims are made
none-the-less. John Yoo presents both congressionalist and presidentialist perspectives under
intentionalism.25
Still others believe instead that the Framers could not have anticipated the technological advances of
two centuries and that the text must be open to interpretation in the current context. They subscribe to
the living document school. For them, therefore, the constitutional text and the authors’ original intentions
are anachronisms and are of interest only to academics. Liberals tend to the living document
interpretation. The living document school is typified by David Mervin in response to an article criticizing
the Clinton administration’s unauthorized use of military force.26
The framers sought to make Congress preeminent in war making, an understandable and
plausible intention at the end of the eighteenth century. More than two hundred years later, the
situation has changed profoundly. Prodigious technological development, the expiration of US
isolation, and the massive information advantages that now accrue to the executive have
combined to undermine the reasoning that lay behind the fashioning of the War Clause. These
realities have gained credence among members of Congress, judges, and the public at large, but
have yet to be widely accepted in the academic community.
Honest people may disagree on what powers a president needs in the twenty-first century. The
dominant parties have not taken permanent positions on the issue of presidential war. (The Civil War era
Whigs were very much anti-monarchists.) As with many principles, the parties have traded places over
22 William C. Banks and Jeffrey D. Straussman, “A New Imperial Presidency? Insights from US Involvement in Bosnia,”
Political Science Quarterly 114 (summer 1999): 195-217. Schlesinger, “Back to the Imperial Presidency,” a new introduction to the
2004 edition of The Imperial Presidency, ix-xxiv.
23 Edward S. Corwin, The President: Office and Powers, 1787-1957 (New York: New York University Press, 1957), 171. The
reference to the 1940 edition is Schlesinger fn 6, p 501, and fn 15, p 502.
24 Leonard W. Levy, Original Intent and the Framers’ Constitution (New York: Macmillan, 1988).
25 John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 (Chicago: University of Chicago Press,
2005). See also the Heritage Foundation, The Heritage Guide to the Constitution (Washington, D.C.: Regnery Press, 2005). A foreword
claims to employ the doctrine of original intent.
26 David Mervin, “Demise of the War Clause,” Presidential Studies Quarterly, 30, no. 4 (December 2000): 770-776. See also
David Gray Adler, “The Clinton Theory of the War Power,” Presidential Studies Quarterly 30, no. 1 (March 2000): 155-168 and
“Virtues of the War Clause,” Presidential Studies Quarterly 30, no. 4 (December 2000): 777-782.
War Powers | 7
time. Today, both parties exhibit a strong-presidency preference, especially when their president is in
power.
The “strong presidency” advocates—who have shifted from “liberal internationalists” during the
early Cold War to “conservative unilateralists” in recent decades—have considered such
[congressional] resolutions [authorizing force] a political annoyance, not a constitutional necessity.
Supporters of preserving congressional power to declare war—whose core political constituency
has shifted from conservative to liberal—have resented the resolutions as preemptive presidential
“blank checks.”27
Immediately upon inauguration in 1933, FDR began expanding the executive branch of government in
the face of a worldwide depression, and he began the practice of conducting foreign policy through
executive agreement rather than through the constitutional treaty provision.
The landmark Supreme Court ruling, U.S. v. Curtiss-Wright Corporation et al, was delivered in 1936.28
Justice George Sutherland reaffirmed the requirement for narrow delegation from Congress to the
president in domestic affairs, but insisted that different rules applied in foreign affairs. He asserted “the
very delicate, plenary and exclusive power of the President as the sole organ of the federal government in
the field of international relations.”29
Sutherland’s opinion quoted a speech given in the House of Representatives in 1799 by
Representative John Marshall (later to become Justice Marshall). Marshall referred to the president as “the
sole organ of the nation in its external relations.” Given the full context, Corwin concludes that Marshall
was referring to “the President’s role as instrument of communication with other governments.”30
Furthermore, the case was about foreign commerce, not war powers. And Justice Robert H. Jackson
subsequently dismissed these statements as dicta—that is, comments made by a judge with only incidental
bearing on the point to be decided and therefore nonbinding.31
Regardless, in the 1937 U.S. v. Belmont case and again in the 1941 U.S. v. Pink case, Sutherland
reaffirmed the position he took in Curtiss-Wright. The president had adopted the practice of using executive
agreements in dealing with foreign powers rather than treaties. The Senate is not required to vote on
executive agreements, and the Court ruled that executive agreement has the same effect as treaty. The
Senate became irrelevant in the process. Curtiss-Wright represents a pronounced shift of foreign relations
authorities away from Congress and to the president. Belmont is “without doubt … one of the most
extreme extensions which could be accorded to the power of the President.”32
With legislation from the world wars repealed, and wartime Supreme Court support for executive
preeminence withdrawn, Truman ran into trouble. After taking over the steel industry under his claimed
authority as commander in chief, the Supreme Court ruled against Truman in Youngstown Sheet & Tube Co.
v. Sawyer.
In Youngstown, Justice Hugo Black wrote that had Truman based his action on some of the available
statutes, he may have prevailed. Instead, Truman based his actions on his constitutional commander-inchief authorities, and Black concluded that those authorities did not extend to the domestic manufacturing
sector. The president is commander in chief of the armed forces, not of the nation.
Also in Youngtown, Justice Robert H. Jackson added what would later be cited frequently as the three
part test.
1.
the president’s power is “at its maximum…when the president acted pursuant to an express or
implied authorization of Congress.”
27 Gary R. Hess, “Presidents and the Congressional War Resolutions of 1991 and 2002,” Political Science Quarterly (spring
2006): 93-118, 94.
28 Crenson and Ginsberg, Presidential Power, 318-323.
29 Cited in Schlesinger, Imperial Presidency, 444.
30 Corwin, Presidential Powers, 216.
31 See reclama attached to Banks and Straussman p. 567. D. M. Levitan, “The Foreign Relations Power: An Analysis of Mr.
Justice Sutherland’s Theory,” Yale Law Journal, April 1946, 493.
32 California Law Review cited in Schlesinger, Imperial Presidency, 103.
War Powers | 8
2.
3.
the president’s power is “at its lowest ebb” when the president took action incompatible with the
express or implied will of Congress.
“there is a zone of twilight” when the president relied on his independent power in the absence
of congressional grant or denial of authority.
Uses of Force
Not all uses of military force are equal. To put the nation on a war footing, Congress may declare war. To
achieve more limited objectives, Congress may authorize the use of force. Presidents may request authorization
anticipating future need, and presidents increasingly use force without authority. The Constitution does
not require a declaration of war. It does, however, require that Congress initiate the use of force.
Congressional Declarations of War
In earlier centuries, declarations of war were part of formal international relations. Declarations specified
the grievances of one state against another, specified what the offending state must do to redress those
grievances, and specified what would be done if those grievances were not redressed. The time between
declaration and response was a matter of custom. But the formal declaration of war was falling out of
favor in the sixteenth century.
A formal declaration of war creates a state of war under international law. Generally, a declaration of
war terminates diplomatic and commercial relations between the two states and abrogates their treaties.
Independent of congressional declarations of war and authorizations for the use of force, the international
laws of war—for example, the Geneva and Hague Conventions—are in effect whenever a state of war
exists.
Hallett makes the distinction between reasoned and unreasoned declarations of war.33 He cites the
Declaration of Independence as a clear example of a reasoned declaration. By reasoned, he means that
the grievances leading to war are identified and the political objectives sought are specified. Those political
objectives set the highest level military objectives to be achieved and, simultaneously, set the conditions for
war termination. Specifying political objectives is an initial step in strategy formulation. Coincidentally or
not, the Declaration of Independence also meets the requirements of just war deliberations.
There have been 11 formal declarations of war spanning five wars: the War of 1812, the MexicanAmerican War in 1846, the Spanish-American War in 1898, and the two World Wars.34 All were at the
request of the president.
The Spanish-American War of 1898 stands alone among US declarations of war. Rather than a
response to an attack on the United States, war was declared to drive Spain out of the Western
Hemisphere, specifically out of Cuba. The result was the removal of Spain as a world power and what has
been called “empire by default” for the United States as it acquired colonial responsibilities in the Pacific
and Caribbean.
None of the eleven congressional declarations of war meets the standards of a reasoned declaration
or presents the basis of a just war. The presidential requests, however, typically contain elements of both.
This is just one more thing that Congress has passively ceded to the president. By its action and inaction,
Congress has retained for itself the authority to state the obvious.
Congress held war power dominance from 1919 to 1939. Roosevelt, remaking government to
overcome the great depression, continued to build presidential power as the war in Europe intensified.
Much of the rationale for the creation of the National Security Act of 1947 was about preventing future
presidents from amassing the authorities that FDR held. At the same time, it was understood that not all
future presidents would possess Roosevelt’s sophistication, and the new national security apparatus would
have to compensate for the personal weaknesses of presidents.
33
Brein Hallett, The Lost Art of Declaring War (Urbana, Ill.: University of Illinois Press, 1998).
The United States separately declared war against Germany and Austria-Hungary in the First World War and with Japan,
Germany, Italy, Bulgaria, Hungary, and Rumania in the Second World War.
34
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Presidential Uses of Force without Congressional Authorization
Throughout American history, presidents have had the responsibility and authority to repel invasion.
During the Cold War, this manifested itself in the authority to launch a massive nuclear counterattack
against the Soviet Union. That the president had this immediate authority, without the need to confer with
Congress, was a critically important component of deterrence. It could be no other way.
Presidents have ordered military force to extract embassy personnel and citizens from abroad when
the local situation is threatening. Those evacuations are too numerous to list. No one contests the
president’s authority and responsibility for those uses of force to protect American lives.
Presidents have conducted a variety of air strikes without congressional authority. Air strikes were
conducted against Libya (1986), Iraq (1993), Bosnia (1993), the Sudan and Afghanistan (1998), and
Yugoslavia (1999). One can make the argument that these air strikes are part of a larger coercive
diplomacy effort rather than acts of war and, thus, are within the president’s purview to conduct foreign
policy under the Constitution. Previously allowed under international law, the UN charter made illegal the
reprisal—an act that follows a previous illegal act of another state. Reprisals continue, however, usually
justified as acts of self defense. The legality of modern reprisals, for example, Reagan’s air strike against
Libya and Clinton’s air strike against Iraq, are questionable at best.
But the war in Korea cannot be so rationalized. President Truman bypassed Congress completely. He
asked for neither a declaration of war nor an authorization for the use of force. Instead, he cited as his
authority a United Nations resolution.35 It should be noted that Article 43 of the UN Charter stipulates
that providing military forces “shall be subject to ratification by the signatory states in accordance with
their respective constitutional processes.” In the UN Participation Act of 1945, Congress demanded that
Article 43 be satisfied, providing forces “shall be subject to the approval of the Congress by appropriate
Act or joint resolution.” Similarly, the North Atlantic Treaty says that a country’s military forces will be
committed “in accordance with their respective constitutional processes.”
On Saturday afternoon, 24 June 1950, Secretary of State Dean Acheson informed President Harry
Truman, who was visiting his home in Missouri, of the North Korean invasion of the South. Acheson
also notified the UN Security Council, which by Sunday afternoon produced a US-drafted resolution
against North Korea.
Upon Truman’s return to Washington, rather than convene the National Security Council, he sought
the advice of his principal military advisors after dinner Sunday evening. After deliberations, Truman
instructed his advisors not to discuss the issue during meetings with congressional committees scheduled
for the following day, Monday, 26 June.
Truman met first with congressional leaders to discuss Korea on 27 June. When asked if the United
States would defend South Korea, he answered yes and further offered that the response would be under
the UN resolution. On this, day three of the conflict, Truman ordered air and sea forces to support the
South. On the seventh day of the conflict, as North Korea routed South Korean forces, Truman belatedly
committed ground forces. Only afterward did Truman meet again with members of Congress to formally
notify them of his actions.
Acheson recommended that the president address a joint session of Congress to report, not to
request authorization. Truman declined even that. The president had general support on the substance of
his decision but not on his legal authority. There is every reason to believe that Congress would have
granted the authority had it been requested.
As an immediate result, bi-partisan support in Congress on foreign and national security policy, most
notably led by Republican Senator Arthur H. Vandenberg, was damaged. Bi-partisanship prior to the
Korean Conflict produced both the North Atlantic Treaty Organization and the European Recovery Act
(the Marshall Plan).36
35 R. Gordon Hoxie, Command Decision and the Presidency: A Study of National Security Policy and Organization (New York: Reader’s
Digest Press, 1977), 89-94.
36 Hoxie, Command Decision, 75-78.
War Powers | 10
Playing word games that continue today, Truman’s “police action” in Korea was the “first full-scale
United States war without a Congressional declaration.”37 Truman later deployed forces permanently to
Europe in support of NATO without congressional authorization. His third act involved the declaration of
a state of emergency and the seizure of steel mills in 1950 to support the Korean conflict. Only Congress
has that authority. Thus, Truman’s third act was rebuked by the courts and declared unconstitutional in
Youngstown.
Truman started a war he could not finish. He had not built a consensus to commitment within the
public or within Congress. Eisenhower campaigned on the promise to end it and did. Unlike Truman,
Eisenhower considered Congress to be a full partner. Anticipating the need to defend Formosa and the
Pescadores against Chinese encroachment, Eisenhower requested congressional authorization to use force
in advance.38 He received it, but conditions did not require its use. To institute the Eisenhower Doctrine,
he asked Congress in advance to agree to military action in support of the territorial integrity and political
independence of states in the Middle East against “aggression from any nation controlled by International
Communism.” In a closed-door session of the Senate Foreign Relations Committee, Secretary of State
Dulles said that Eisenhower “takes a more conservative view than some other Presidents have taken”
referring to Roosevelt and Truman. The Doctrine was debated and authorized. Democratic Senator
Hubert Humphrey called it a “predated declaration of war.”39 In 1958, Ike sent marines to Lebanon under
the statutory authority granted in 1957. Subsequent presidents requested and abused pre-authorizations as
open-ended, blank checks.
Congressional Authorizations for the Use of Force
Short of declared war, Congress has authorized the use of force for a variety of purposes.
With advisory forces already committed to Vietnam, Congress granted President Lyndon Baines
Johnson (1963-1969) broad and open-ended authorization in what is commonly known as the Gulf of
Tonkin Resolution. On 2 August 1964, the USS Maddox destroyer in international waters off of North
Vietnam reported a possible attack. Maddox was conducting intelligence gathering simultaneously and in
close proximity to ongoing US-sponsored commando raids conducted by the South Vietnamese against
the North. On 4 August, with tensions high, another incident occurred but it appears that no attack by the
North actually took place. Johnson ordered retaliatory air strikes the same day. Johnson, looking to
escalate, seized the opportunity of the apparent attack and met with congressional leaders to request
support on 5 August. Congress passed a joint resolution on 10 August authorizing the use of force as
necessary to assure peace and security in Southeast Asia and to assist any member state of the Southeast
Asia Treaty Organization (SEATO). The eventual employment of over 500,000 troops to Vietnam was
conducted under this open-ended authorization, and Congress acquiesced.
President Richard Milhous Nixon (1969-1974) campaigned against and inherited an increasingly
unpopular war in Vietnam. Nixon very soon approved a secret bombing campaign in Cambodia
conducted between March 1969 and May 1970. In March 1970, Nixon authorized a ground incursion into
Cambodia, he publicly announced the incursion the night of 30 April, and the operation was conducted
from 1 May to 30 June 1970. The announcement led to college riots including those at Kent State
University, where on 4 May Ohio National Guardsmen fired into a crowd of students, some of them
protestors, killing 4 and wounding 9, one of them suffering permanent paralysis.
In late December 1970, congressional appropriations legislation sought to constrain the president and
the war by prohibiting the use of funds for the introduction of ground forces or advisors into Cambodia.
Congress repealed the Gulf of Tonkin Resolution on 12 January 1971. In late June 1973, appropriations
language included a prohibition on the expenditure of funds after 15 August 1973 to support “combat
activities in or over Cambodia, Laos, North Vietnam, and South Vietnam.” December 1974 legislation
limited presence in Vietnam to four thousand troops within six months and to three thousand within a
year.
37
Hoxie, Command Decision, 17.
Hoxie, Command Decision, 20-21.
39 Keith Kyle, Suez, 527-528.
38
War Powers | 11
Presidential dominance over Congress, largely through claims of supposed commander-in-chief
authorities, virtually uncontested from 1945 to 1965, underwent somewhat of a reversal.
Impeachment and Censure
The Constitution provides for the removal of the highest officials of the land, including the president.40
Thomas Jefferson proclaimed, “a party of revolution against the royal prerogatives—the divine right of
kings and the corruptions of empire associated with an essentially unfettered monarch.”41 We would be a
nation of laws, not men. Nixon’s statement, “When the president does it, that means that it is not illegal,”
captures the rule-of-man over rule-of-law attitude.42 But presidents have arrogated to themselves
extraconstitutional powers reminiscent of the era of divine right monarchy. They have shown contempt
for the people’s branch and contempt for the Constitution. And these are exactly the fears that prompted
the Framers to include impeachment in the Constitution. Responding to Nixon’s excesses, “rule-of-law
Republicans” moved toward impeachment, saying, “The power of impeachment is the Constitution’s
paramount power of self-preservation.”43
Our impeachment process is borrowed from the British. It is an integral part of the development of
the rule of law over the rule of man, as parliamentary democracy slowly supplanted divine right
monarchy.44 The first impeachment was in 1376 when the first speaker of the House of Commons
impeached two noblemen for raiding the public treasury. The next impeachment was in 1386 and
introduced the catch-all phrase of high crimes and misdemeanors, while charging officials with “squandering
away the public treasury” and “procuring offices for persons who were unfit, and unworthy of them.”
Another phrase was introduced early in the evolution of divided government: Parliament’s power of the
purse. King Charles was in the habit of employing public resources in support of his royal relatives waging
wars on the European continent. In 1620, Parliament limited grants of public funds for those wars. When
so challenged, Charles repeatedly dissolved Parliament, acts which led to what became known as the
Eleven Year Tyranny under claims of divine right monarchy. To the category of high misdemeanor was
added “attempting to subvert the fundamental laws of the kingdom.” Charles was eventually overthrown
and executed.
As the distribution of power between the branches of government branches grew clearer,
impeachment was called many things, the “primary instrument of parliamentary resistance to the crown,”
“the chief institution for the preservation of government,” the tool through which we have “broken the
grip of monarchy and embraced the rule of law,” and the “key weapon in the long struggle of parliament
against the abuse of executive power.”45 Impeachment was well known to the founding fathers.
During the American constitutional convention, impeachable offenses included terms both broad and
narrow. They included “treachery, corrupting electors, and incapacity,” “malpractice and neglect of duty,”
“treason and bribery,” “attempts to subvert the Constitution,” and “maladministration.”46 In the final
document, the wording was reduced to “Treason, Bribery, or other high Crimes and Misdemeanors.” We
would not elect an unfettered king for four years.
Article 1, § 2. The House of Representatives … shall have the sole Power of
Impeachment.
Article 1, § 3: The Senate shall have the sole Power to try all Impeachments. … When the
President of the United States is tried, the Chief Justice shall preside: …And no Person
shall be convicted without the Concurrence of two thirds of the Members present.
40
John Nichols, The Genius of Impeachment: The Founders’ Cure for Royalism (New York: The New Press, 2006).
Nichols, Genius of Impeachment, 7.
42 Cited in Schlesinger, Imperial Presidency, xvi.
43 Representative Robert McClory (R-Ill), quoted in Nichols, Genius of Impeachment, 97.
44 Nichols, Genius of Impeachment, 23-44.
45 Nichols, Genius of Impeachment, 30, 36, 42.
46 Nichols, Genius of Impeachment, 31-32.
41
War Powers | 12
Article 2, § 4. The President, Vice President and all Civil Officers of the United States,
shall be removed from Office on impeachment for, and Conviction of, Treason, Bribery,
or other high Crimes and Misdemeanors.
Article 2, § 2. The President … shall have Power to grant Reprieves and Pardons for
Offences against the United States, except in Cases of Impeachment.
Article 2, § 1. Before he enter on the Execution of his Office, he shall take the following
Oath or Affirmation: “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.”
A Manual for Parliamentary Practice, written by Vice President Thomas Jefferson in 1801, is still in use by
the House of Representatives. It provides a list of ways that impeachment may be initiated.47
 by charges made on the floor on the responsibility of a member or Delegate;
 by charges preferred by a memorial, which is usually referred to a committee for examination;
 by a resolution dropped in the hopper by a Member and referred to a committee;
 by a message from the President;
 by charges transmitted from the legislature of a State or territory or from a grand jury; or from
facts developed and reported by an investigating committee of the House.
As a matter of current practice, the House Judiciary Committee deliberates whether to initiate an
impeachment inquiry and, if so decided, adopts a resolution seeking authority from the assembled House
to conduct the inquiry. If the full House, by simple majority, authorizes the inquiry, the Judiciary
Committee conducts the inquiry and, if warranted, prepares articles of impeachment enumerating the
charges. The articles of impeachment are returned to the full House where each article is voted on. A
simple majority constitutes impeachment.48
To impeach means to subject the accused to trial by the Senate. When the president is tried, the chief
justice of the Supreme Court acts as judge, and the Senate acts as jury during the trial when the articles of
impeachment are considered. A two-thirds majority is required in the Senate. If found guilty, the officer is
removed and denied further high office. The guilty may also be subject to legal action beyond removal.
Articles of impeachment brought against modern-day presidents are diverse but resonant with the
charges of earlier centuries. The second article brought against Nixon was for abusing the power of office
to attack his critics.49 Articles brought against Reagan concerned the shipment of arms from Israel to Iran,
funding the Nicaraguan Contras, failing to notify Congress, and “his disregard for the laws of the United
States and pattern of assault and irresponsible decisionmaking.” The fourth article brought against the
elder Bush concerned “committing the United States to acts of war without congressional consent and
contrary to the UN Charter and international law.”50
Unlike impeachment, censure is not specified in the Constitution, but it is an established part of
congressional traditions since Andrew Jackson was censured by the Senate in 1834 for assuming for
himself unconstitutional powers by defunding the Bank of the United States. The House censured John
Tyler in 1842 for a veto and the tone of his veto message. James Polk provoked “an armed skirmish
between American and Mexican forces” and then asked Congress for a declaration of war. Congress
granted the declaration in 1848, but first it voted to censure Polk for instigating an unconstitutional and
unnecessary war. Either house may initiate censure. Censure provides a formal method short of
impeachment for publicly holding the president accountable.
47
Nichols, Genius of Impeachment, 168-169.
http://www.law.cornell.edu/background/impeach contains background information on censure and impeachment
collected during the Clinton impeachment.
49 Nichols, Genius of Impeachment, 144.
50 Schlesinger, Imperial Presidency, xviii.
48
War Powers | 13
Congressional Take Back after Vietnam
The conflicts in Korea and Vietnam were long and costly undeclared wars. Both were wars of limited
objectives conducted in the context of the Cold War. Truman bypassed Congress to use force in Korea.
Johnson built on a contrived incident to request and receive broad authority to use force in Southeast
Asia. The War Powers Resolution was written in anger at the end of the Nixon administration. Its
legitimacy and effectiveness remains controversial.51 Among other things, the legislative veto and
redelegation of authority are at issue.
Legislative Veto and Redelegation
In the American form of government, sovereignty lay with the people, not with a monarch. The
Constitution is the sovereign’s grant of authority to the branches of government. One branch of
government cannot redelegate to another branch powers granted to it in the Constitution. Thus,
congressional directions to the executive in the form of legislation should be narrow. If they are too
broad, the courts could consider them to be redelegation and rule them unconstitutional.52
As the government bureaucracy grew in size and complexity, Congress increasingly legislated in the
abstract and left the details to executive agencies. This trend was particularly pronounced in the 1960s and
1970s. As a check on the regulatory agencies, Congress retained the authority to veto administrative
regulations.
Administrative regulations can be seen, and are seen by many, to be a form of sub-legislation. The
authority to develop regulations was a broad delegation from Congress that gave the executive branch
greater authority over legislation. Congress relied on concurrent resolution to overrule disagreeable
administrative regulations, what became known as the legislative veto. In Immigration and Naturalization Service
v. Chadha,53 the court ruled that the legislative veto was unconstitutional. Legislation would have to be
passed by both houses of Congress and presented to the president for signature or veto, and a concurrent
resolution is not submitted to the president.
As a result, some laws have been changed replacing concurrent resolution with joint resolution.
Unlike a concurrent resolution, a joint resolution is submitted to the president for signature and possible
veto. Congress can authorize with a simple majority, but once signed into law by the president, Congress
will likely have to produce a supermajority to deauthorize the action.
Nor can powers granted to Congress as a whole be redelegated to a part, for example, to a single
house or to a committee. Thus, Congress’s power to authorize war or the use of force cannot be delegated
to a committee established for that purpose.
The War Powers Resolution of 1973
Congress sensed too great a shift of authorities from the people’s branch to the executive and, over the
veto of President Richard Nixon, passed the War Powers Resolution on 7 November 1973. With his 24
October veto, Nixon claimed the Resolution to be “both unconstitutional and dangerous to the best
interests of our nation.” The perceived encroachment on presidential prerogatives has met with
continuous rejection by administrations since.
The purpose of the Resolution is, as stated in section 2, consistent with the “intent of the framers of
the Constitution,” to
51
The interested reader should acquire The War Powers Resolution: After Thirty-three Years, RL32267 (Washington, D.C.:
Congressional Research Service, 2007). In addition to a thorough discussion of events since enactment, its appendices include the
full text of the Resolution, all instances reported under the Resolution, and instances formally reported. See also War Powers
Resolution: Presidential Compliance, RL33532 (Washington, D.C.: Congressional Research Service, 2007). Declarations of War and
Authorizations for the Use of Military Force: Historical Background and Legal Implications, RL31133 (Washington, D.C.:
Congressional Research Service, 2006). Each is updated periodically. One reliable source is http://www.fas.org/man/crs/natsec,
from which each of these was accessed on 19 June 2007.
52 Crenson and Ginsberg, Presidential Power, 343.
53 Crenson and Ginsberg, Presidential Power, 294
War Powers | 14
insure that the collective judgment of both the Congress and the President will apply to
the introduction of United States Armed Forces into hostilities, or into situations where
imminent involvement in hostilities is clearly indicated by the circumstances, and to the
continued use of such forces in hostilities or in such situations.
The key phrase, “into hostilities or into situations where imminent involvement in hostilities is clearly
indicated by the circumstances,” is repeated several times in the text.
Section 2 of the War Powers Resolution further specifies the limits of the president’s authority to
introduce forces.
The constitutional powers of the President as Commander-in-Chief to introduce United
States Armed Forces into hostilities, or into situations where imminent involvement in
hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a
declaration of war, (2) specific statutory authorization, or (3) a national emergency
created by attack upon the United States, its territories or possessions, or its armed
forces.
Section 4. Reporting
(a) In the absence of a declaration of war, in any case in which United States Armed Forces are
introduced—
(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by
the circumstances;
(2) into the territory, airspace of waters or a foreign nation, while equipped for combat, except for
deployments which relate solely to supply, replacement, repair, or training of such forces; or
(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already
located in a foreign nation;
the President shall submit within 48 hours to the Speaker of the House of Representatives and to the
President pro tempore of the Senate a report, in writing, setting forth—
(A) the circumstances necessitating the introduction of United States Armed Forces;
(B) the constitutional and legislative authority under which such introduction took place; and
(C) the estimated scope and duration of the hostilities or involvement.
(b) The President shall provide such other information as the Congress may request in the fulfillment of its
constitutional responsibilities with respect to committing the Nation to war and to the use of United
States Armed Forces abroad.
(c) Whenever United States Armed Forces are introduced into hostilities or into any situation described in
subsection (a) of this section, the President shall, so long as such armed forces continue to be engaged in
such hostilities or situation, report to the Congress periodically on the status of such hostilities or
situation as well as on the scope and duration of such hostilities or situation, but in no event shall he
report to the Congress less often than once every six months.
Section 3 of the Resolution requires the president to consult “in every possible instance” prior to
introducing forces and regularly thereafter. While the intent is clear, the specifics of when to consult are
vague, and presidents have consistently ignored the intent. With whom the president should consult is also
ambiguous. Perhaps most importantly, the meaning of consultation has been abused consistently by
presidents.54
The president is also subject to reporting requirements. Reporting and consulting are different and
independent. Section 4 sets the requirements for both initial reporting within 48 hours and subsequent
reports to be submitted at least every six months. Section 4 is the principal source of ambiguity in this
piece of legislation.
Section 5 specifies timelines. Specifically, forces initially deployed under presidential authority must be
withdrawn within 60 days after the president submits a report to Congress unless Congress provides a
declaration of war or a statutory authorization to continue the use of force. An extension of 30 days may
54
CRS, War Power Compliance, 15.
War Powers | 15
be granted if necessary for the safe withdrawal of US forces from hostilities. Congress may also assert that
the president should have submitted a report, thus retroactively starting the clock.
The exploitable loophole is that, according to section 5(b), the deadlines are triggered only if the
initial presidential report cites section 4(a)(1) or if Congress asserts that the report was required. Only
President Ford explicitly cited section 4(a)(1). Subsequent initial reports included, “in accordance with the
War Powers Resolution” but did not cite any section or subsection. Thus, presidents later could argue that
the time requirements were not triggered.
Section 5 also states that, absent a congressional declaration of war or statutory authorization for the
use of force, Congress may require the withdrawal of forces at any time by concurrent resolution—the
defective legislative veto—thus requiring Congress to amass a supermajority to override the expected
presidential veto of a joint resolution. The authority of Congress to order the withdrawal of forces, as
declared in Section 5, has been challenged by successive presidents.
Responses to the War Powers Resolution 1973
In the first 33 years since passage (1973-2007), presidents filed 121 reports in accordance with the War
Powers Resolution. President Ford filed four in his short two-year tenure and President Carter filed only
one during his four years. Reagan’s eight years produced fourteen reports, and George H.W. Bush
continued at the same pace, producing seven reports in four years.
Reporting accelerated with the end of the Cold War and the arrival of William J. Clinton, who
produced 60 reports in eight years. By 12 June 2007, Bush filed 44 reports. But in 2004, the administration
began filing “consolidated reports” covering operations in 10 or more countries, and it has not reported
on Iraq since the initial report in March 2003.
It should be noted that not all reports are initiation reports; many reports satisfy the requirement to
report on ongoing activities at least every six months. Thus, the large numbers partially reflect the
accumulation of ongoing overseas deployments.55
Gerald Ford (1974-1977)
President Ford made four reports. Three were about evacuating civilian personnel from Vietnam and the
fourth was about retaking a captured merchant vessel, the SS Mayaguez. The Mayaguez incident is unique
in that it cited 4(a)(1) and triggered the Resolution’s time limits. As became the consistent pattern, Ford
notified Congress after the decision had been made but before the operation had commenced, and called that
consultation. Subsequent presidents would follow that pattern.
Jimmy Carter (1977-1981)
President Carter submitted only one report under the War Powers Resolution. He “consulted” Congress
only after the failed attempt to rescue hostages from Iran. Carter deployed 19 special operations forces
troops to El Salvador without authorization or report. Special operations forces are often deployed to
train indigenous force and training missions do not require a WPR report. But the training role often
quickly turns into an advisory role in ongoing conflicts thus constituting a gray area in reporting
requirements.
Ronald Reagan (1981-1989)
President Reagan conducted several skirmishes in the Cold War, including two incidents in Lebanon, the
invasion of Grenada, air strikes against Libya, persistent naval operations during the Iran-Iraq War,
counterinsurgency in El Salvador, and proinsurgency in Angola and Nicaragua. The latter led to the IranContra scandal late in the administration.
Lebanon (1982, 1983-1984).56 Reagan sent 800 marines to Lebanon to assist in withdrawing forces of
the Palestinian Liberation Organization in 1982. Reagan approved the plan on 2 July 1982 and announced
it publicly soon thereafter. Later, on 6 July, Reagan held consultations with Congress. He reported to
55 CRS, WPR after 33 Years, 56-77. Much of the information presented here comes directly from Appendix A of this report,
and from CRS, WPR Compliance.
56 CRS, WPR after 33 Years, 15-17.
War Powers | 16
Congress the first deployment of forces into Lebanon on 24 August 1982 as the marines were landing.
After mission completion, the marines withdrew on 10 September 1982.
As the level of violence rapidly escalated in Lebanon, Reagan ordered a second deployment of
marines on 20 September 1982. Reagan reported on the 1200-marine deployment on 29 September but
without reference to 4(a)(1). Unlike the previous deployment, the second had no clear objectives, was
politically contentious, and was not reported under the WPR.57 Considerable negotiations took place
between Congress and the White House after the deployment took place. After two marines were killed,
Reagan reported again on 30 August 1983 without reference to 4(a)(1), even though the conditions of the
hostility clause clearly had been met.
Several bills were introduced to compel Reagan to comply with the War Powers Resolution. Congress
and the president reached a compromise on 20 September 1983 specifying that the marines must be
withdrawn within 18 months. Section 4(a)(1) was retroactively declared operational as of 29 August 1983.
The compromise was then expressed as a joint resolution of Congress, which Reagan signed on 12
October 1983. In signing the resolution, Reagan stated
that I do not and cannot cede any of the authority vested in me under the Constitution as
President and as Commander in Chief of United States Armed Forces. Nor should my
signing be viewed as any acknowledgement that the President’s constitutional authority
can be impermissibly infringed by statute, [or that … ] the resolution may be interpreted
to revise the constitutional authority to deploy United States Armed Forces.
In less than a month, marine casualties accelerated and congressional pressure increased. On 23
October 1983, 241 marines were killed in a bombing attack. Reagan quickly cautioned that withdrawal
would be perceived as weakness. Regardless, the administration announced withdrawal on 7 February
1984, and the end of mission was announced on 30 March.
Grenada (1983).58 On 25 October 1983, Reagan ordered a landing of forces on the Caribbean island
of Grenada.59 Reagan signed the order at 6 p.m. on 24 October. He met with congressional leaders two
hours later. The invasion began at 5:30 the following morning. The administration claimed that the
military operation could be done in less than 60 or 90 days and, therefore, WPR restrictions did not apply.
Rather than the constitutional requirement for Congress to authorize the use of force, the WPR was
interpreted as a grant authorizing the president to do as he pleased for 60 days. Eleven members of
Congress sued, but the court deferred claiming that not all congressional remedies had been exhausted.
El Salvador (1981-1983).60 The contest between Reagan and Congress extended beyond Lebanon to
El Salvador. Reagan increased the deployment of Special Forces soldiers from 19 to 54 without
authorization or report claiming that they were not being introduced into hostilities or imminent
hostilities. Members of Congress again filed suit. Again, the court rejected the suit, this time because
Congress had not shown that the action was subject to the Resolution. A higher court affirmed the ruling,
and the Supreme Court declined to hear the appeal. Those US forces did sustain casualties.
Nicaragua (1982-1986).61 Nicaragua was also a point of contention between Reagan and Congress.
The Boland amendment to the 1982 Defense Appropriations Act prohibited funds from being used to
overthrow the Government of Nicaragua or to provoke military exchange between Nicaragua and
Honduras. Reagan sought funds from the Sultan of Brunei that are rumored to have been deposited in
the wrong Swiss account and lost. He also sought funds from private sources. Refusal to answer questions
about the Sultan of Brunei transaction led to the inquiry that discovered Iran-Contra.62
57 James Burk, “Public Support for Peacekeeping in Lebanon and Somalia: Assessing the Casualty Hypothesis,” Political
Science Quarterly (spring 1999): 53-78, 72.
58 CRS, WPR after 33 Years, 17.
59 Michael Rubner, “The Reagan Administration, the 1973 War Powers Resolution, and the Invasion of Grenada” Political
Science Quarterly 100, no. 4 (winter 1985-1986): 627-647.
60 CRS, WPR after 33 Years, 12-14.
61 CRS, WPR after 33 Years, 14-15.
62 Crenson and Ginsberg, Presidential Power, 218-219
War Powers | 17
Reagan conducted joint exercises in Central America and the Caribbean to intimidate Nicaragua.
Exercises were announced 27 July 1983, began 8 August, and continued for several years without WPR
report. Reports surfaced in the press in 1985 that options were being considered to invade Nicaragua. In
response, a 1986 sense of Congress indicated that there should not be an intervention into Nicaragua.
Still, US helicopters carried Honduran forces to the Nicaraguan border area and Congress responded by
prohibiting US personnel from entering Nicaragua and from assisting within 120 miles of the Nicaraguan
border.
Libya (1986). On 14 April 1986, Reagan initiated Operation El Dorado Canyon, a punitive strike on
Libya in retaliation for terrorist acts. After issuing the order, Reagan met with congressional leaders from 4
to 6 p.m. on 14 April. During the meeting, he announced that aircraft were on their way and should arrive
at about 7 p.m. The administration formally reported to Congress on 16 April.
President Reagan’s level of consultation with Congress prior to the Libya bombing was
somewhat unique. In January 1986, Reagan submitted Executive Order 12543, which
decreed that a state of emergency existed between the United States and Libya. After
that, the president did not petition Congress for an authorization to use force, justifying
his actions as commander-in-chief, which he claimed were unquestioned.63
Persian Gulf tanker reflagging (1987-1988).64 During the Iran-Iraq War (1980-1988), Reagan put
forces in harm’s way in the Persian Gulf, without request or authorization. Instead, he reported isolated
incidents under the Resolution.65 Foreign commercial ships were reflagged as US vessels and then provided
protection by US Navy combatant ships in the Gulf. The Reagan White House did report to Congress, but
only after the USS Stark was attacked on 17 May 1987 by Iraqi aircraft killing 37 sailors, and even then not
in accordance with the Resolution. In this case, 111 members of Congress filed suit. The court dismissed
the suit, refusing to resolve what it characterized as a political dispute among legislators.
US
George H.W. Bush (1989-1993)
President Bush’s primary uses of force included the invasion of Panama, restoring Kuwaiti sovereignty
after invasion by Iraq, and humanitarian intervention in Somalia. A possible military intervention in Haiti
was avoided.
Panama (1989-1990). Congress was favorably inclined to depose Panamanian president Manuel
Noriega. Before adjourning between 22 November 1989 to 23 January 1990, Congress encouraged the
president to apply diplomatic pressure to that end. Bush made the decision to invade Panama to capture
its president, to protect 35,000 American citizens, and to restart the democratic process.66 The president
made the decision at a 6 p.m. meeting on 19 December 1989, while Congress was adjourned, and later
notified some members of Congress. The invasion began within a few hours at 1 a.m. on 20 December.
The formal report to Congress was filed the next day. An additional 14,000 troops were added to the
13,000 already in Panama. Panamanian president Manuel Noriega surrendered on 3 January 1990.
Deployed forces were withdrawn by 13 February, leaving the original 13,000 in place. The operation was
quick and enjoyed popular support.
63 David B. Cohen and Chris J. Dolan, “Revisiting El Dorado Canyon: terrorism, the Reagan administration, and the 1986
bombing of Libya,” White House Studies, 22 March 2005. Robert P. Watson, ed., Focus on US Presidents, Presidency and Presidential
Actions (New York: Nova Science Publishers, 2007), 25-54.
64 CRS, WPR after 33 Years, 18-21.
65 CRS, WPR after 33 Years, 59. Several exchanges of fire occurred and were reported separately during 1987 and 1988. On 21
September 1987, US helicopters fired on Iranian mine layers; a WPR report was filed on 23 September. On 8 October, US
helicopters returned fire from small Iranian naval vessels; a WPR report was filed on 10 October. On 15 October, a US flagged ship
was fired upon and the US destroyed an armed Iranian platform on 19 October; a WPR report was filed on 20 October. On 14
April 1988, the USS Samuel B. Roberts hit a mine; the White House met with congressional leaders to discuss options, and on 18
April, armed Iranian oil platforms were attacked; a WPR report was filed on 19 April. On 3 July 1988, the USS Vincennes and Elmer
Montgomery sank an approaching Iranian small watercraft and then shot down an Iranian passenger aircraft; a WPR report was filed
on 4 July 1988. On 12 July 1988, US Navy helicopters exchanged fire with Iranian small craft; a WPR report was filed on 14 July.
66 CRS, WPR after 33 Years, 21-22.
War Powers | 18
Iraq (1990-1991).67 On 2 August 1990, Iraq invaded Kuwait. On 7 August, Bush deployed forces to
defend Saudi Arabia and notified Congress. An official report under the War Powers Resolution was
submitted on 9 August. Bush denied that hostilities were imminent. Discussions between the White House
and Congress followed the deployment and reporting.
Sensing a presidential end run during the force build-up phase, called Operation Desert Shield,
Congress introduced legislation for a congressional consultation group. The Senate and House announced
establishment of the group on 23 October 1990. Bush met with the group on 30 October but mentioned
no plan to send additional forces. Congress adjourned, and Bush quickly ordered 150,000 troops to deploy
on 8 November. He filed a report on 16 November, again disclaiming that hostilities were imminent.
Forty-five Democrats sought a judicial order on 20 November 1990 to prevent the offensive use of force
without congressional authorization. The court refused. By the end of the year, there were 350,000 troops
deployed.
On 8 January 1991, President Bush requested congressional “support,” not “authorization.” When
asked about congressional authorization during a 12 January 1991 press conference, he famously
responded, “I don’t think I need it.” Congress spared the president a constitutional crisis by providing
authorization. When signing it into law, Bush added
As I made clear to congressional leaders at the outset, my request for congressional
support did not, and my signing this resolution does not, constitute any change in the
long-standing positions of the executive branch on either the President’s constitutional
authority to use the Armed Forces to defend vital US interests or the constitutionality of
the War Powers Resolution.
At a later Party convention in Texas, Bush was asked why he was successful in war but not in matters
of the economy. He answered the question by saying, “I didn’t have to get permission from some old goat
in the United States Congress to kick Saddam Hussein out of Kuwait.”
The decision to initiate the offensive phase, Operation Desert Storm, was made during a presidential
morning meeting on 15 January 1991. The secretary of defense and chairman of the Joint Chiefs of Staff
signed the execute order that evening approving operations to begin the next day. Desert Storm began on
17 July 1991 (the ground attack commenced 24 February) and ended 28 February 1991.
Operations against Iraq continued under the same open-ended authorization until the October 2003
invasion by the next Bush president.
Haiti (1992). The United States had backed rightwing dictators Francois “Papa Doc” and JeanClaude “Baby Doc” Duvalier for almost three decades. Three unelected military presidents ruled from
1987 to 1990 when Jean-Bertrand Aristide was elected president with almost 70 percent of the popular
vote. The leftwing Aristide initiated democratic reforms that were countered by military death squads. In
September 1991, a military coup led by army general Raoul Cedras replaced the elected Haitian president,
Jean-Bertrand Aristide. President Bush averted a military intervention choosing instead an economic
embargo including the return of escaping refugees to Haiti.
Somalia (1992). After losing reelection to Bill Clinton, Bush ordered forces into Somalia on 4
December 1992, and he spoke with some members of Congress. In support of a UN resolution, the
mission was to establish a secure environment for humanitarian assistance operations to starving Somalis
caught in the chaos following the collapse of the official government. The plan was to withdraw US forces
after transitioning to UN peacekeeping forces. Forces arrived on 8 December, and the president submitted
his initial report on 10 December. There were 25,000 US forces deployed by mid January.
Bill Clinton (1993-2001)
President Clinton filed a record 60 reports in accordance with the provisions of the War Powers
Resolution. Over half involved the Balkans. About one quarter involved operations in Africa and one
tenth in Haiti. Single reports were filed with respect to operations in Cambodia, Afghanistan, Iraq, and
Yemen, and three were filed regarding East Timor. Early in the Clinton administration, consultation was
67
CRS, Declarations and Authorizations, 14-16.
War Powers | 19
conducted in the spirit of the Constitution and the War Powers Resolution, but that faded quickly. While
Bush had rejected congressional authorities, Clinton publicly acknowledged congressional authority,
promised consultation, and then delivered a fait accompli. The contest between executive and legislative
was as apparent as was the contest between parties.
Clinton inherited ongoing conflicts in Somalia and Haiti. The American public had been more
supportive of humanitarian assistance than of peacemaking and peacekeeping.68 None of these are precise
terms, and to forces on the ground, there are differences of nuance only. An important distinction
separates these missions whether or not it can be precisely articulated. The public and the parties sense the
distinction, however, and they care.
Somalia (1993-1994).69 Clinton inherited the Somalia mission in January 1993. The Senate and House
considered several initiatives throughout February and March but gave no authorization for UN
humanitarian assistance. Congress asked for consultation and expressed the president’s need to receive
authorization. On 3 March 1993, the UN secretary general recommended to the Security Council that the
mission should be to establish security, achieve national reconciliation, and develop a democratic state. A
UN resolution was adopted on 26 March. UN forces undertook peacemaking and peacekeeping, to end
civil war, capture warlords, and begin the process of nation building. Lead transitioned from the United
States to the UN in mid May.
On 5 June, UN forces were attacked by Somali militia believed under control of warlord Mohamed
Farah Aideed, killing 23 Pakistani peacekeepers. On 10 June, Clinton reported that a US quick response
force had responded. US forces attacked targets associated with Aideed from 12 to 16 June, and operations
continued through the summer, many aimed at capturing Aideed, a national hero to many. Clinton ordered
a missile strike against a radio station and weapon storage sites without report.
Events forced Clinton to withdraw from Somalia. The Black Hawk Down episode occurred 3 to 4
October 1993. The already unpopular deployment became even more so, and Congress began to act.
Clinton consulted for 2 hours with congressional leaders on 7 October. He followed on 13 October with a
33-page report. To avoid a constitutional show down, Clinton announced that troops would be withdrawn
by 31 March 1994, and Congress moved to withhold appropriations from the promised date forward.
The Somalia experience quickly produced two shifts in Clinton’s foreign policy. The first was an
increased reluctance to engage in third-world conflicts, like those in Rwanda. The second was a preference
for “cruise missile diplomacy” over “boots on the ground.”
Rwanda (1994).70 An ethnic conflict erupted in Rwanda between Hutu and Tutsi in April 1994.
Several hundred thousand Rwandans, mostly Tutsi, were killed. Millions fled, swelling refugee camps.
Clinton supported Belgian demands for withdrawal of UN forces. Official use of the word “genocide” was
scrupulously avoided. Clinton ordered airdrops of food and supplies to refugees and in July sent 200 noncombat forces to the capital’s airport to support supply distribution.
A 12 April report was filed on the deployment of troops to Burundi for a possible evacuation of noncombatants from Rwanda. No other reports were filed. In a September anticipatory move, Congress
prohibited the expenditure of funds for military operations in or around Rwanda after 7 October 1994.
The international response was similarly reserved.
Iraq (1993).71 In response to an assassination attempt against George H.W. Bush in a trip to Kuwait,
Clinton ordered a cruise missile strike against intelligence headquarters in Baghdad. The 26 June attack
was reported to Congress two days later.
Haiti (1993-1994).72 In September 1991, a military coup led by army general Raoul Cedras replaced
the elected Haitian president, Jean-Bertrand Aristide. As conditions worsened following President
Aristide’s overthrow by General Cedras, thousands fled to the United States in 1993. Adopting the Bush
policy he formerly criticized, Clinton returned the refugees so as not to encourage more.
68
Burk, Casualty Thesis, 72.
CRS, WPR after 33 Years, 30-32, 61, 63. CRS, WPR Compliance, 11-12.
70 CRS, WPR after 33 Years, 42-45, 62, 65.
71 CRS, WPR after 33 Years, 61.
72 CRS, WPR after 33 Years, 42-45, 62, 63, 64. CRS, WPR Compliance, 9-11.
69
War Powers | 20
Under pressure, on 3 July 1993, Cedras agreed to Aristide’s return on 30 October. The UN and the
Organization of American States would verify compliance. Training and construction units from Canada
and the United States began to arrive on 6 October. A second contingent arriving on 12 October
withdrew when met by armed Haitian civilians. The UN Security Council authorized restoration of the
embargo on 13 October.
On 18 October, Senator Robert Dole offered an amendment to an appropriations bill requiring
authorization and certification that there was a threat to US security or citizens. Congressional leaders and
the administration negotiated the amendment’s language. On 20 October, Clinton submitted a report
stating that US warships were in the region supporting the UN embargo on Haiti. Congress complained
that it did not authorize the deployment and was not consulted.
Throughout the summer, Congress considered several measures imposing restrictions on the
president’s use of force. Neither restrictive nor authorizing legislation was passed. Clinton reported
continued deployment of forces on 20 April 1994. On 24 May, Defense Authorization legislation included
a sense of Congress that no action should be taken unless the president certified clear and present danger
to US citizens or interests. On 10 June, Clinton announced additional steps to tighten the embargo. On 31
July, the UN authorized all necessary means to be employed to remove Cedras. This was the authorization
that Clinton had sought. But on 3 August, the Senate voted unanimously that a UN Resolution did not
constitute presidential authority. Clinton replied that he would welcome the “support of Congress,” but
denied that he needed it.
On 15 September 1994, Clinton publicly announced that it was time for the Haitian military to step
down. In the face of a Congress united in opposition to a US intervention, Clinton publicly announced the
call up of reserves and ordered two carriers to the region. The following day he sent a delegation that
successfully negotiated the end to military rule. In an 18 September address to the nation, Clinton
announced an agreement allowing 15,000 UN troops to begin entering by 19 September and for the
military to step down by 15 October. Clinton credibly claimed that the solution was achieved only because
of the threat of US military force. Congress immediately commended the president and delegation and
encouraged the prompt and orderly withdrawal of US forces as soon as possible.
The administration reported the deployment of 1500 as part of the build up on 21 September.
Marines killed 10 armed Haitians on 24 September, and the hostilities clause threshold was met. On 3
October, a sense of Congress said that the “President should have sought congressional approval before
deploying US forces to Haiti” and supported a prompt and orderly withdrawal as soon as possible. Clinton
signed it into law on 25 October 1994. American forces escorted Aristide into the capital on 15 October
1994.
Force levels peaked at 21,000. By the end of March 1995, most US forces were replaced by UN forces,
and a year later, only 300 remained. In December 1997, Clinton ordered an indefinite presence. September
1999 legislation prohibited funding beyond 31 May 2000, and troops were withdrawn by late January 2000.
Bosnia and Herzegovina (1992-1994).73 The Republic of Bosnia and Herzegovina, commonly
referred to simply as Bosnia, declared its independence from Yugoslavia in December 1991. Conflict was
already apparent, and the UN had authorized an arms embargo since 25 September 1991. Bosnian Serbs,
supported by Serbia, wanted to remain in the Yugoslav federation, and they were better militarily equipped
than Bosnian Muslims and Croats. The Serbs were dominant in the countryside and were able to besiege
the cities. The capital, Sarajevo, was under siege from 5 April 1992 until 29 February 1996. The Bosnian
Serbs had consolidated the blockade by 2 May 1992. As a counter, the Sarajevo airport was opened to UN
assistance operations in late June.
There was no consensus on a course of action. The Western European powers tended towards an
arms embargo to starve the conflict. Clinton preferred lifting the embargo and bombing Serb supply lines,
but initially deferred to European allies. The US Congress tended to prefer lifting the embargo to allow the
poorly equipped Muslims and Croats to defend themselves.
Both the Senate and House urged the president on 11 August 1992 to take action through the UN.
The Senate resolution added that no troops should be inserted into hostilities without clear objectives.
73
CRS, WPR after 33 Years, 32-39. CRS, WPR Compliance, 3-4.
War Powers | 21
The House resolution included language to authorize humanitarian relief. But no authorization to use
force was given to the president. On 13 August, the UN authorized member nations to use all measures to
facilitate delivery of humanitarian assistance to Sarajevo.
Secretary of State Warren Christopher announced on 10 February 1993 the administration’s pursuit
of a diplomatic solution that would include ground forces for peacekeeping. The United States began
humanitarian air drops on 28 February. The UN authorized member states to use all measures to enforce
no-fly zones and safe havens on 31 March. As part of NATO, US air forces began enforcing the no-fly
zone on 12 April and the president reported to Congress the next day.
On 27 April, Clinton consulted for two hours with more than 20 congressional leaders and received a
wide range of views. He began consultation with allies on 2 May for a cease fire. No consensus was
reached within Congress. No consensus was reached between the legislative and executive branches. And
no consensus was reached between the United States and its European allies.
On 10 June 1993 Christopher publicly announced that 300 troops would be deployed as part of UN
peacekeeping forces to Macedonia to prevent the conflict from spreading. The associated report to
Congress was made on 9 July.
During talks with the UN and NATO, Clinton suggested that the United States might provide 25,000
troops as part of a peacekeeping force of 50,000. On 23 September 1993, Senator Bob Dole announced
his intention to offer an amendment to prohibit troop deployments without prior congressional approval.
The Defense Appropriation Act for FY94 included a non-binding sense of Congress statement that no
funds should be obligated for such operations without prior approval. On 5 October, the administration
promised consultation and not to send troops without congressional support.
At a NATO summit on 11 January 1994, Clinton repeated an August threat of air strikes on Serbia. On
17 February 1994, the president reported that 60 aircraft were authorized for air strikes. Three additional
WPR reports were filed in March, April, and August about subsequent air strikes. Congress called for its
greater involvement. In May, Senators Dole and George J. Mitchell separately offered amendments
authorizing air operations and lifting of the arms embargo. There was no House action.
On 30 September, the Defense Appropriations Act for FY95 contained a sense of Congress
statement that no funds should be used for peacekeeping forces without prior congressional
authorization. A 5 October 1994 sense of Congress urged an end to the embargo.
By November 1994, through massive human rights abuses, dislocations, and consolidation of
territory, the Serbs appeared close to achieving their goals. The administration changed strategy to
emphasize negotiation of a peace settlement.
The Arrival of the 104th Congress. The 104th Congress was convened 4 January 1995. The new
Republican Congress, armed with the so-called contract with America, was against US troops under UN
command and against UN peacekeeping. As far as the Republicans were concerned, the United States had
moved too far toward “globalism.” Those sentiments were punctuated by the recent tragedy in Somalia.74
The Soviet Union was no longer a unifying threat, and a strongly ideological Republican majority in
Congress was pitted against a Democratic president initially weak in foreign policy and further weakened
by events in Somalia, Haiti, and Bosnia. If ever there would be conditions favoring restoration of
congressional over presidential war powers, this was it. In the Senate, the Republican Party’s presidential
aspirations for Robert Dole and Newt Gingrich’s leadership in the House caused Congress to flail and
then fail. Presidential candidates need to appear presidential and not obstructionist. While speaker of the
house, Gingrich argued for a stronger hand for the presidency75 as did John McCain in the Senate.
Establishing a balanced budget took legislative priority over asserting congressional war powers.
Bosnia and Herzegovina (1995).76 On the first day of the 104th Congress, Dole introduced a bill to
halt the embargo, Mitchell offered a similar bill. By early April 1995, evidence was pressing that Bosnian
Serbs had committed massive human rights abuses. Opponents claimed that UN and NATO operations had
failed.
74
Ryan C. Hendrickson, “War Powers, Bosnia, and the 104th Congress,” Political Science Quarterly 113, no. 2, (1998): 241-258.
Hendrickson, War Powers, 246.
76 CRS, WPR after 33 Years, 32-38.
75
War Powers | 22
On 24 May 1995, Clinton reported the continued use of force. American forces participated in NATO
air strikes on 25 and 26 May 1995 and on 11 July 1995, but no WPR reports were made, and no
congressional complaint was lodged. Human rights abuses continued. Air Force pilot Scott O’Grady was
shot down and a safe haven was overrun. A massive August bombing ensued and was met with
congressional silence.77
Joining the Senate, the House introduced a bill to terminate the arms embargo in late July. With
Senate and House concurrence to end the embargo, the president vetoed the legislation on 11 August
1995. Even with supermajority numbers in both houses, the veto was not challenged.78
September 1995 was a month of congressional movement. The president reported air operations
against Bosnian Serbs on 1 September 1995. The House put forward language prohibiting the obligation
of further funds early in September, and the Senate proposed language at the end of the month that there
should be no use of funds without prior authorization. Neither limiting nor authorizing legislation was
passed.
Clinton’s Bosnia policy was the subject of mounting criticism. On 17 and 18 October, Secretary of
State Warren Christopher, Secretary of Defense William Perry, and Chairman, Joint Chiefs of Staff John
Shalikashvilli testified before Senate and House committees and discussed the potential for 20,000 troops
as part of a NATO peacekeeping force. Christopher announced that the president would not be bound by
congressional restrictions. In a 19 October letter from Clinton to Senator Robert Byrd, the president
maintained that
[w]hile maintaining the constitutional authority of the Presidency, I would welcome,
encourage and, at the appropriate time, request an expression of support by the
Congress.
On 30 October, the House offered another sense of House that there should be no force deployment
without prior authorization. On 13 November, in a letter to Speaker of the House Newt Gingrich,
Clinton said that he would send a request for a congressional expression of support to deploy troops as
part of a NATO Implementation Force (IFOR), but that he still reserved his constitutional prerogatives. On
17 November, the House passed HR 2606 to prohibit funds. On 4 December 1995, Secretary of Defense
Perry announced the initial deployment of an advance force of about 1400 for IFOR. Clinton formally
reported the deployment on 6 December and the deployment of an additional 3000 support troops to the
region prior to the accord.
Peace talks were begun anew at Wright-Patterson Air Force Base near Dayton, Ohio and continued
from 1 to 21 November 1995. Two days before peace talks began, the House voted 315-103 that “the
President should not assume he could send troops abroad without authorization from Congress.”
The Dayton Accords were to be signed in Paris on 14 December 1995. The day before was busy in
both houses of Congress. The majority of the public was opposed to the UN deployment. Still, House and
Senate Republicans voted to “support the troops but not the policy” on 13 December 1995. The House
measure included the language “unequivocally supports the men and women of the United States Armed
Forces who are carrying out their mission in support of peace in Bosnia and Herzegovina with
professional excellence, dedicated patriotism and exemplary bravery.” Senate language included “Congress
opposes President Clinton’s decision to deploy” troops to Bosnia, but “Congress strongly supports” the
troops. A resolution sponsored by Dole and McCain calling for equipment and training support to
Muslim-Croat Federation included “unequivocally supports the men and women of our Armed Forces,”
and “not withstanding reservations expressed about President Clinton’s decision.” But nothing passed
both houses.79
Dole’s presidential aspirations prevented him from appearing obstructionist and unpresidential.
Gingrich yielded to the president, owing on the one hand to his belief in a strong presidency and on the
77
Hendrickson, War Powers, 248.
S.21, introduced on 4 January 1995 passed by a vote of 69-29. H.Res.204 introduced on 28 August 1995 passed by a vote
of 298-128.
79 Hendrickson, War Powers, 251-255.
78
War Powers | 23
other hand to the balanced budget battle looming in November and December. The balanced budget took
priority over reestablishing congressional war powers.
On 21 December 1995, Clinton reported the deployment of 20,000 troops for IFOR, plus another
5000 mostly to Croatia, and another 7000 support forces to deploy to the region. In December 1996,
Clinton promised another 8500 ground troops for the Stabilization Force (SFOR).
Two and a half years later, on 18 March 1998, a resolution introduced by Representative Tom
Campbell to remove forces was defeated.
Haiti (1997-2000). In December 1997, Clinton ordered an indefinite troop presence in Haiti. In
September 1999, the FY00 Defense Authorization bill prohibited funding troops beyond 31 May 2000. By
the end of January 2000, all US forces were withdrawn.
Iraq (1998-2001). Clinton reported actions enforcing sanctions against Iraq under P.L. 102-1 rather
than under the WPR. Between 16 and 23 December 1998, military and industrial targets—particularly
those thought capable of producing weapons of mass destruction—were subjected to a bombing
campaign without report.
Afghanistan and Sudan (1998).80 In response to terrorist attacks on embassies in Kenya and
Tanzania, thought to be by Osama bin Laden, Clinton ordered missile strikes on 20 August 1998 against a
pharmaceutical plant in Sudan and training camps in Afghanistan. Both were thought to be under the
control of bin Laden. Intelligence indicated a meeting to be held at the training camp and that bin Laden
would be in attendance. A WPR report was filed on 21 August. No consultation took place, and no
authority had been granted for these reprisals.
Kosovo (1998-2000).81 The breakup of Yugoslavia produced the Federal Republic of Yugoslavia
(FRY) from the former republics of Serbia and Montenegro. The new republic’s southern province of
Kosovo was almost entirely Muslim Albanians who preferred their independence. The Serbs, however,
saw Kosovo as sacred territory and deployed forces to quell the uprising in the spring of 1998. Hundreds
of thousands were displaced, and Slobodan Milosevic would later be tried for war crimes and the
slaughter of Kosovar Albanians. The administration used the word “genocide” more freely than in
Rwanda.
In support of the ethnic Albanians, Clinton threatened air strikes against Serbia. That course of
action was opposed by Russia and China and likely would have produced a veto in the UN. Without UN
sanction, and without congressional authorization, Clinton ordered air strikes. NATO began a massive air
campaign on 24 March 1999. The administration reported to Congress on 26 March.
Congress attempted throughout April and May to constrain the president’s use of force and to
prevent deployment of ground forces. Eighteen members of Congress, led by Representative Tom
Campbell, filed suit in federal district court to force the president to get authorization for the air war. The
House passed a bill to prohibit funds for ground forces without prior authorization. Additional measures
were considered to limit the expenditure of funds. A proposal in the House to declare a state of war
against FRY was almost unanimously defeated. In the Senate, McCain’s proposal to authorize all uses of
force was defeated. Still, on 20 May, Congress submitted for presidential signature an emergency
supplemental with billions for operations in Kosovo.
On 25 May 1999, the 60th day had passed since commencement of the air war and no 30-day
extension had been requested. The president cited the alleged constitutional defects of the War Powers
Resolution. Both the House and Senate considered authorizing air and missile strikes.82 The Senate leaned
toward air operations. The House was split. No prohibitive or authorizing legislation was passed.
The constitutional process had worked its way to completion and denied the authorization to use
force. Clinton continued air operations regardless. It was the “first time in our history that a president has
waged war in the face of a direct congressional refusal to authorize the war.”83
80
CRS, WPR after 33 Years, 66.
CRS, WPR after 33 Years, 39-41, 67. CRS, WPR Compliance, 4-5.
82 The Senate voted 58-41 in favor of air and missile strikes on 23 March 1999. The House voted a 213-213 tie on 28 April
1999.
83 David Gray Adler, “The Clinton Theory of the War Power,” Presidential Studies Quarterly 30, no. 1 (March 2000): 155-168.
81
War Powers | 24
An agreement was reached on 10 June 1999 that included a cease-fire, withdrawal of Yugoslav
military and paramilitary forces, and the creation of a UN peacekeeping force (KFOR). On 12 June, Clinton
reported that 7000 US peacekeeping forces were deployed to KFOR with an additional 1500 sent to the
region in support.
Campbell’s suit, filed on 30 April 1999, was dismissed on 8 June. The lower court held that the
members lacked standing. Campbell appealed on 24 June, and on 18 February 2000, an appeals court
affirmed the lower court’s decision. On 18 May, 30 members joined Campbell in appealing the ruling.
Without comment, the Supreme Court refused to hear the case on 20 October.
The president waged without authority the most “intensive and sustained” air campaign since
Vietnam. Congress chose to “support the troops” through appropriations, but “not the policy” through
authorization. The court looked the other way.
Yemen (2000). Two days after the 12 October 2000 attack on the USS Cole in the port of Aden,
Yemen, Clinton reported the deployment of an incident response force including medical and security
forces.
George W. Bush (2001-2009)
The Bush administration continued the high operating tempo after campaigning on a resistance to
interventions. In his eight years, Bush filed 39 reports compared to Clinton’s record 60 filings. But the
administration began the practice of submitting semi-annual consolidated reports covering multiple
ongoing operations making further comparison meaningless. Bush also continued the Clinton practice of
reporting operations in support of sanctions against Iraq under P.L. 102-1 rather than under the WPR.
Seventeen of the 39 reports were semi-annual consolidated anti-terrorism reports. Seven reported on
operations in Bosnia and another six on Yugoslavia/Kosovo and three on East Timor. Single reports were
filed on the initiation of operations in Afghanistan and Iraq, but subsequent reports were folded into the
consolidated reports. The remainder of WPR reports covered deployments to protect or evacuate embassy
personnel from Cote d’Ivoire, Liberia and Mauritania, Haiti, and Lebanon.
Beginning 24 September 2001 and continuing semiannually, a single anti-terrorist report was filed
covering multiple operations. Beginning 20 March 2004, the consolidated semi-annual report covered
operations in Afghanistan, Bosnia, Kosovo, Haiti, Georgia, Djibouti, Kenya, Ethiopia, Yemen, and Eritrea.
Iraq was added to the 4 November 2004 report. By 2002, standard language developed, including
“maritime interdiction operations on the high seas” and “combat-equipped and combat-support forces”
deployed to “a number of locations in the Central, Pacific, European, and Southern Commands’ areas of
responsibility.” The newly established Africa Command was added in December 2008. Standard language
also included military forces for training to enhance the counterterrorist capabilities of partner nations.
Terrorist Attacks against the United States (2001).84 The events of 11 September 2001 provided
President Bush almost carte blanche. Consultation between the White House, both houses of Congress,
and congressional leadership from both parties produced Senate Joint Resolution 23, “The Authorization
for the Use of Military Force.” The resolution was passed 14 September 2001 almost unanimously (98-0
and 420-1) and signed into law on 18 September, P.L. 107-40. The statute authorized the president
… 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 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.
Authorizing the use of force against organizations and individuals was without precedent. Past
legislation authorized the use of force against named nations or unnamed nations in a named region.
When signing the legislation, Bush noted,
84
CRS, WPR after 36 Years, 39-42.
War Powers | 25
I maintain the longstanding position of the executive branch regarding the President’s
constitutional authority to use force, including the Armed Forces of the United States
and regarding the constitutionality of the War Powers Resolution.
On 24 September 2001, the president reported deployments of combat-equipped and combatsupport forces to the Central Command’s and Pacific Command’s areas of responsibility. The report
included the caveat that additional deployments could follow and that he could not predict the scope,
duration, or nature of necessary actions.
Afghanistan (2001).85 On 9 October 2001, Bush reported that two days earlier US forces “began
combat action in Afghanistan against al-Qaeda terrorists and their Taliban supporters.” The response was
linked to the events of 9/11 and as “part of our campaign against terrorism” was “designed to disrupt the
use of Afghanistan as a terrorist base of operations.” All subsequent reporting was included in the
consolidated semi-annual anti-terrorist report.
Iraq (2003).86 On 4 September 2002, the president met with congressional leadership from both
houses and both parties. He announced that he would be seeking congressional “support” and would also
speak to the United Nations. He addressed the UN General Assembly on 12 September. Seven days later,
the White House transmitted draft legislation to the House and Senate. Debate ensued in the Senate from
4 to 11 October. Legislation passed in the House with greater than a 2 to 1 majority (296-133) on the 10th
and in the Senate with a 3 to 1 majority (77-23) the next day. The president signed into law, P.L. 107-243,
“Authorization for the Use of Military Force against Iraq Resolution of 2002” on the 16th. The statute
authorized the president to
1. defend the national interests of the United States against the continuing threat posed by Iraq;
and
2. enforce all relevant United Nations Security Council resolutions regarding Iraq.
The use of force required the president to first communicate to Congress that diplomatic and other
peaceful means would not achieve the objectives, but it did not require a linkage of Iraq to the events of
9/11.
When signing, the president added that
my request for it did not, and my signing this resolution does not, constitute any change
in the long-standing positions of the executive branch on either the President’s
constitutional authority to use force to deter, prevent, or respond to aggression or other
threats to U.S. interests or on the constitutionality of the War Powers Resolution.
On 21 March 2003, Bush reported that he had directed US forces to commence operations against
Iraq two days earlier. All subsequent reporting was included in the consolidated semi-annual anti-terrorist
report.
Barack H. Obama (2009- )
The Obama administration continued the previous administration’s practice of submitting semi-annual
consolidated reports covering “ongoing operations overseas.” Reports were consistently filed in June and
December, each with a common core and small variations. As of June 2011, the Obama administration
submitted 5 WPR reports.87 Obama also continued the Bush practice of using generic language including
operations in the area of responsibility for all of the regional combatant commands and for “maritime
interception operations.” Ongoing operations in Iraq and Afghanistan were included in the semi-annual
consolidated report.
Some highly visible operations went without explicit WPR report or congressional challenge—the
responses to hostage taking off the Somali Coast and the raid to kill or capture bin Laden in Abbottabad,
Pakistan. But military operations against Libya received considerable attention.
85
CRS, WPR after 36 Years, 42-44.
CRS, WPR after 36 Years, 42-44.
87 CRS, War Powers Resolution: Presidential Compliance, 24 June 2011.
86
War Powers | 26
Piracy on the High Seas (2009-2011). Piracy and anti-piracy operations had been commonplace,
particularly in the Strait of Malacca, but not the subject of public scrutiny. Piracy off the Somali coast,
however, had become hostage taking. A commercial ship was taken hostage in April 2009, and the
occupants of a private yacht were taken hostage and killed in February 2011. No consultation was
apparent, no specific report was filed, and there was no congressional challenge. These actions are easily
included under the generic reporting of “maritime interception operations on the high seas.”
Abbottabad, Pakistan Raid (2011). The president authorized an operation to kill or capture Osama
bin Laden from a compound in the city of Abbottabad, Pakistan. The operation was planned amidst
considerable secrecy and successfully executed on 1 May 2011. There was no consultation apparent, no
specific report was filed, and there was no congressional challenge. This operation was clearly within the
authorization provided by P.L. 107-40 passed a week after 9/11.
Libya (2011).88 As part of the “Arab Spring,” public demonstrations against the rule of Moammar
Kadafi were met with swift reprisals. UN Security Council Resolution 1973, adopted 17 March 2011,
authorized all measures to protect civilians and prevent a humanitarian catastrophe. On 21 March the
president reported, “consistent with the War Powers Resolution,” that he had ordered commencement of
operations two days prior to support UN strikes limited in nature, duration, and scope.
On 1 April 2011, the Office of Legal Counsel (OLC) submitted its opinion to the White House on the
“Authority to use Military Force in Libya.”89 The opinion cited past OLC opinions and the germane
Supreme Court rulings. The opinion was made public six days later.
[The] President’s legal authority to direct military force in Libya turns on two questions:
first, whether United States operations in Libya would serve sufficiently important
national interests to permit the President’s action as Commander in Chief and Chief
Executive and pursuant to his authority to conduct U.S. foreign relations; and second,
whether the military operations that the President anticipated ordering would be
sufficiently extensive in “nature, scope, and duration” to constitute a “war” requiring
prior specific congressional approval under the Declaration of War Clause.
The OLC identified the national interests to be the preservation of “regional stability” and the United
Nations Security Council’s “credibility and effectiveness.” It further concluded that the degree of
involvement anticipated did not constitute a war.
On 20 May 2011, day 60 of operations, the White House sent to congressional leaders a letter, not a
WPR report, reporting that military operations initiated on 21 March were transitioned to NATO on 4 April.
Since then the US was in a supporting role, providing intelligence, logistics, search and rescue capabilities,
and suppression of enemy air defense capabilities. Since 23 April, the United States provided unmanned
aerial vehicles as well. Rather than consultation, the report cited the supportive language in a bipartisan
resolution drafted by Senators John Kerry, McCain, Leven, Feinstein, Graham, and Lieberman.
The House considered the president’s actions toward Libya on 3 June 2011. It voted for language
preventing deployment of units on the ground without prior authorization; it noted that no authorization
was sought or granted; and it reminded the president of congressional authority to withdraw funds. The
measure passed by almost a 2 to 1 majority. On the same day, the House voted against language that would
direct the president to withdraw US forces already committed. The measure was defeated by the same 2 to
1 majority.90 Congress, and many others, draws a line between projecting air power from off shore and
putting “boots on the ground.”
Twelve days later, on 15 June, Obama submitted a report, not a WPR report, detailing actions in Libya
to date. It included a paragraph labeled “Legal Analysis” consistent with the earlier OLC opinion.
Given the important U.S. interests served by U.S. military operations in Libya and the
limited nature, scope and duration of the anticipated actions; the President had
constitutional authority, as Commander in Chief and Chief Executive Officer and
88
CRS, Presidential Compliance, 1-4.
http://www.justice.gov/olc/memoranda-opinions.html.
H.Res. 292 was passed with a 268-145 vote. H.Con.Res. 51 to direct the withdrawal of US forces was defeated 148-265.
89
90
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pursuant to his foreign affairs powers, to direct such limited military operations abroad.
The President is of the view that the current U.S. military operations in Libya are
consistent with the War Powers Resolution and do not under that law require further
congressional authorization, because U.S. military operations are distinct from the kind of
“hostilities” contemplated by the Resolution’s 60 day termination provision. U.S. forces
are playing a constrained and supporting role in a multinational coalition, whose
operations are both legitimated by and limited to the terms of a United Nations Security
Council Resolution that authorizes the use of force solely to protect civilians and civilian
populated areas under attack or threat of attack and to enforce a no-fly zone and an arms
embargo. U.S. operations do not involve sustained fighting or active exchanges of fire
with hostile forces, nor do they involve the presence of U.S. ground troops, U.S.
casualties or a serious threat thereof, or any significant chance of escalation into a conflict
characterized by these factors.
In regards to receiving congressional support, the president’s report again referred to the draft
resolution from Senate leaders.
The Administration has repeatedly indicated its strong support for the bipartisan
resolution drafted by Senators McCain, Kerry, Lieberman, Levin, Feinstein, Graham, and
Chambliss that would confirm that both branches are united in their commitment to
supporting the aspirations of the Libyan people for political reform and self-government.
Rather than rely on what had become the traditional presidential response—claiming the
unconstitutionality of the WPR and the president’s unquestioned constitutional authorities—the Obama
administration argued in the gray area more clear in the bifurcated pre-WWII system. Prior to the National
Security Act of 1947, Congress had the authority to declare war and raise an army, and the War
Department stood by to organize, train, and equip that army. And through the State Department, the
president could use Navy Department resources to conduct foreign affairs, including coercive diplomacy
below the threshold of declared war, without much congressional interest. The unification of the armed
forces under a single Defense Department obfuscated that somewhat rational distinction.
The Pattern of Presidential Response to the War Powers Resolution
A pattern of presidential response is clear. Presidents treat the Resolution as unconstitutional and nonbinding. When Congress attempts to terminate presidential actions, it does so primarily through
appropriations. The court has refused to intervene, and the president is firmly in charge impotently
challenged by Congress. The pattern also includes the “when” and the “with whom” aspects of
consultation and the reporting clause that starts the 60-day clock.
Consulting. Regardless of congressional intent, presidents have chosen to discharge their obligation to
consult with Congress by notifying Congress after the decision is made and orders issued but before
forces are actually engaged, sometimes only hours before forces are put in harm’s way.
With whom a president might consult is uncertain. Several attempts have been made to specify a
congressional consultation group. Congress has attempted to address the speed and secrecy issues by
having a small and knowledgeable group preselected, but Congress cannot delegate its war making
responsibilities to a subgroup.
Reporting. In their reports to Congress, presidents have avoided reference to Section 4(a)(1) so as to
not trigger the 60-90 day withdrawal deadline. Congress shrinks from the challenge, rarely starting the
clock of its own volition.
When presidents have deployed troops without prior congressional authority, they have consistently
included language along the lines of, “constitutional authority with respect to the conduct of foreign
relations as Commander in Chief of United States Armed Forces.” In addition, they have often made
reference to treaty organizations like NATO and the UN.
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Termination. Congress has a variety of ways to terminate force deployments: funding cutoffs, funding
restrictions, and Section 5 of the War Powers Resolution.91 Congress can also de-authorize the use of
force that it has previously authorized. When the legislature and the executive strongly differ on policy,
Congress has found that restricting funds is the most effective way of curbing the president’s use of force.
Congress has withdrawn or reduced funding, and it has imposed significant restrictions on how funding
may be used. The power of the purse is a more effective mechanism for checking presidents than are the
provisions of the War Powers Resolution. But Congress uses its power timidly and ineffectually.
In general, congressional activity appears to be part of a negotiation with the executive branch. Actual
law is passed only after the deal has been struck. Probably more effective than the actual legislation is the
friction induced by the public discourse. It is critically important political theater.
For Consideration
Throughout the Cold War, a political consensus supported a standing military for the first time in
American history, and it supported a continual shift in authorities from the people’s branch to the
executive. The reaction of the Soviet Union had to be factored into every decision concerning US
diplomatic and military moves. The Cold War is over. The Soviet Union no longer checks the presidential
use of military force. Congress ceased to play that role.
The shift in war powers from Congress to president is of high consequence. “The capture by the
Presidency of the most vital of national decisions, the decision to go to war … was as much a matter of
congressional abdication as of presidential usurpation.”92 The consequence is democracy diminished.
When presidents rule by decree in even the most routine matters, they diminish
democracy. When they and their subordinates ignore, circumvent, and express distain for
legislative processes, they diminish democracy. When they create decision-making
processes designed to mute debate and discussion in order to enhance their own power,
presidents diminish democracy.93
Congress has held a stronger grip on domestic policy, where their constituency lies, while both
Congress and the people defer to the president on matters of foreign policy. The terrorist attacks against
the United States have blurred the distinction. And “as the distinction between foreign policy and
domestic policy diminishes, the president’s growing foreign policy powers are certain to take on even
greater domestic importance.”94
Status of the Competition
This is a competition between the legislative and executive branches, sometimes strengthened by and
sometimes diluted by partisan politics. The judicial branch has refused to adjudicate. The chief executive is
unchecked and unbalanced. The competition was energized after the Cold War as Congress sought to
reclaim its constitutional authority in the face of Bill Clinton and George W. Bush’s extraordinary uses of
force.
Congress—and the Constitution—are losing badly.95 The competition between the 104th Congress
and the Clinton administration bodes poorly for restoration of constitutional balance. All the conditions
at the initiation of the competition favored Congress, but the president won handily. Absent all the
enabling conditions present then, there is little reason to believe that Congress will rise to meet its
constitutional responsibilities.
If not Congress, who then can check an unfettered executive? The author of the Church Committee
report, the 1976 review of abuse of executive power during the Vietnam era, citing a reluctant Congress,
91
CRS, Congressional Use of Funding Cutoffs since 1970 Involving
2001.
92
Schlesinger, Imperial Presidency, xxvii.
Crenson and Ginsberg, Presidential Power, 368.
94 Crenson and Ginsberg, Presidential Power, 278.
95 Hendrickson, War Powers, 241-258.
93
US
Military Forces and Overseas Deployments, RS20775, 10 January
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calls “for citizens themselves to demand disclosure, oversight, and restraint of sweeping claims of
executive power.” There is little reason to believe that the public will engage beyond removing
incumbents.
Most prominently since Truman, the president expands, Congress acquiesces, and the court looks the
other way.96 Nixon’s excesses caused a strong backlash but it was short lived. What can we expect after
Iraq?
In the case of Iraq, the result has been the biggest failure of American power and diplomacy since
Vietnam, maybe the worst ever. Will it undermin[e the] power of the presidency? Probably not.
Presidents fail, but the presidency adapts. Unfortunately, the adjustments that strengthen the
presidency do not reliably produce policies that strengthen the country.97
As one of the most distinguished Supreme Court justices, Louis D. Brandeis, reminds us, the point in
separation of powers is “not to promote efficiency but to preclude the exercise of arbitrary power.”98
Resolving the Competition
The War Powers Resolution remains problematic. Many in Congress think it has established a process
through which they can wrestle with the president; they would prefer shoring up the Resolution. Many
whose prejudice lies in preserving the Constitution, its checks and balances, and the rule of law would
repeal the Resolution. Presidential imperialists accept the Resolution’s weakness and talk around the
Constitution.
Repair the War Powers Resolution.99 Several proposals have been made to repair the War Powers
Resolution to deal with the issues of speed, secrecy, legislative veto, judicial review, and redelegation. The
most obvious patch is replacement of “concurrent resolution” with “joint resolution” to address the
problem of legislative veto. But the requirement for the supermajority to overcome the likely presidential
veto would remain.
Several attempts have been made to establish a standing consultative committee in Congress. It could
improve consultation, should the president so deign. It could improve the speed and secrecy of the
consultative process. But the authority to use force cannot be redelegated from Congress to a committee.
Members of the committee would have to return to their respective houses to initiate debate and
legislation, thus sacrificing speed and secrecy. Consultation might improve; authorization would not.
When presidents act without congressional authority, the courts have refused to adjudicate, often
citing the political question doctrine, treating it as a disagreement on substance rather than on constitutional
law. On other occasions, the courts have refused to hear congressional filings claiming that the members
of Congress lack standing. Proposals have been made to provide the legislation giving members standing,
but there is no guarantee that the courts would concur and adjudicate.
There is more at stake than providing a workable process of consultation. It is a principle of
republican government that the wisdom of the many is superior to the wisdom of one. As Adler
reminded us, “an elected president may lack the wisdom, temperament, and judgment, not to mention
perception, expertise, and emotional intelligence, to produce success in foreign affairs. Those qualities,
which to be sure are attributes of the occupant and not the office, cannot be conferred by election.”100
Ignore the War Powers Resolution. Those who favor an imperial presidency need take no specific
stand on the Resolution. Since its passage, each president has doubted its constitutionality and has refused
to be bound by it. Given that modern presidents have refused to be bound by the Constitution, it is
doubtful that they would feel bound by a new and improved statute.
Presidents, White House insiders, and presidential aspirants tend to favor clear presidential
dominance. Richard “Dick” Cheney and Newt Gingrich fall into this camp. Cheney, the “uncontested
96
Nichols, Genius of Impeachment, 139.
Crenson and Ginsberg, Presidential Power, 279.
98 Schlesinger, Imperial Presidency, xxv, note 2 on page 501.
99 CRS, WPR after 33 Years, 51-55.
100 Adler, Virtues of the War Clause, 780.
97
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champion of executive excess,” argued for expanding executive powers while he was an aide to Nixon as
the president was driven from office.101 Cheney continued those calls from the office of the vice president.
“In thirty-four years, I have repeatedly seen an erosion of the powers and the ability of the president of
the United States to do his job.” Gingrich, even though he disagreed with Clinton’s Bosnia policy, deferred
to presidential lead on principle. John McCain also deferred to Clinton.
Repeal the War Powers Resolution. Other politicians put the Constitution first, and defend the
separation of powers. They argue that the Resolution has actually eroded Congress’s constitutional
authorities. Prior to passage in 1973, “Unilateral presidential war was a matter of usurpation. Now, at least
for the first ninety days, it was a matter of law.”102 “Our constitutional system is better protected by
requiring presidents to act in the absence of law and later obtain legal sanction from Congress, rather than
by having Congress authorize in advance, as with the War Powers Resolution, unilateral action.”103
The longest-standing protector of Congress’s constitutional authorities is Senator Robert Byrd,
Democrat from West Virginia. Representative Henry B. Gonzales of Texas repeatedly brought articles of
impeachment against successive presidents whenever they violated the Constitution. John Conyers Jr. is
another constitutionalist who, after considering charges of impeachment of Nixon for initiating war
against Cambodia, said “There is no subversion greater than the misappropriation—through lies, false
constructs and secretive scheming—of its power to declare war that had been afforded only to Congress.”
Democratic senator Russ Feingold from Wisconsin voted against dismissing impeachment charges against
Democrat Clinton and asked the Senate to censure Republican Bush for wiretapping. In regard to
Clinton’s action in Bosnia, Feingold said, “The president has in effect rendered Congress’s role
meaningless”104 When the Senate voted 98-1 for the Patriot Act granting the president extraordinary
powers, Feingold cast the only nay.105
With the WPR repealed, how could Congress perform its duties? The power of the purse is used
ineffectually. When Congress disagrees with a president’s use of military force, it will deny authorization
but appropriate the funds—support the troops but not the policy. It does not take a stand on
constitutional grounds.
Rely on the Constitution. Presidents can easily skirt Congress to initiate hostilities, and they often
have initial support from a deferential public. But when wars drag on, and the costs mount, the people ask
why. Those presidents who did not bother to build the consensus to commitment pay the price. Before
entering the Second World War, FDR painstakingly built a consensus to commitment over time. Truman,
Johnson, and Bush did not. Presidents can request a declaration of war or authorization to use force, and
Congress can carry on a vigorous public debate to build a consensus or not.
Congressional authorization is the output of a process, and the process has a deeper purpose. The
very process of public debate held in the people’s branch engages the wisdom of the many. The postCold War vacuum at the level of national security strategy makes ad hocery the only option (discussed in
Chapters 4 through 6). Congress is a poor place to formulate grand strategy, but it is precisely the place to
hold the public debate. A president who successfully engages Congress in the process will institutionalize
the decisions made. Congressional committee members will affect oversight of the many programs it
takes to implement strategy. Without commitment to broad and enduring national strategic policy,
Congress is dragged into the tactical where the president always wins. Presidents come and go abruptly.
Congress, by design, changes slowly and incrementally, thus providing greater stability than a transient
president can achieve.
Furthermore, Congress and the public should adhere to Teddy Roosevelt’s admonition that war time
is precisely the time to argue for and against the use of force. Nothing is more democratic, and nothing is
101
Nichols, Genius of Impeachment, 64-65.
Schlesinger, Imperial Presidency, 434-435.
103 Fisher and Adler, WPR Goodbye, 18.
104 Hendrickson, War Powers, 254.
105 Schlesinger, Imperial Presidency, xviii.
102
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more American. Such challenges should be the norm and those who demonize it recognized as the
unpatriotic.106
The Framers of the Constitution had a remedy for presidents who would be king. That remedy is
impeachment. Members of Congress, who have sworn to defend the Constitution, should be prepared to
impeach every time a president uses force without authorization, whether or not they agree with the use
of force. They should be prepared to lose, but they should never shrink from their responsibility.
Impeachment should be common enough to be an effective check on presidents. When the government
fears the people, there is liberty; when the people fear the government, there is tyranny.107
The shame of Congress is that it impeached Bill Clinton for lying about a sexual encounter and
turned its head when he defied Congress, bypassed the Constitution, and waged an unauthorized war.
Amend the Constitution. David Mervin points out that the Constitution’s framers were not
infallible. They spoke in less than enlightened terms of women, Africans, and American natives. Just as
those pronouncements came from an anachronistic value system, so too do congressional war powers.
David Adler acknowledges those constitutional defects, but counters by saying that those anachronistic
positions were altered by the constitutionally prescribed amendment process.
What is at stake here is nothing less than the rule of law, the marrow of which consists of
presidential subordination to the Constitution. … If a president strongly, even fervently, believes
military force is necessary, he is allowed to argue his case before Congress. But he may go no
further if constitutional government is to command any respect.108
Either abide by the Constitution or amend it by the constitutional process to grant the president the
war making powers of the old European monarchs.
Democratic Peace
Immediately following the Cold War, a “peace dividend” was expected. The absence of great power
conflict was somehow equated to a period of peace. But the periods between great power conflicts are not
peaceful.
Throughout the period, presidents would be unable to discipline themselves in the use of force, and
Congress would be unwilling to discipline presidents. The belief in democratic peace—that democracies
tend not to war, or that democracies tend not to war against each other—was used to justify the use of
force around the world to spread democracy or to make the world safe for democracy. The overwhelming
evidence is that stable democracies and stable autocracies are equally prone to war; but they are much less
prone to war than are states transitioning between the two forms of government.109 Stable governments
are less prone to war than unstable governments in transition. Given this evidence, one should easily have
anticipated a period of widespread hostility after communist regimes and regimes artificially propped up
by the Soviet Union collapsed; few did.
The Framers chose a republican democracy. The notion that republican democracies could form a
pacific union was well known to the Framers of the Constitution before it was articulated by Immanuel
Kant in 1795. The Framers put theory into practice in the new Constitution. Democracy demanded that
sovereignty lay in the people, not in the monarchy or aristocracy. And republicanism demanded a
separation of power between those who would decide the direction of the country and those
administrators who would execute those decisions—the wisdom of the many was superior to the wisdom
of the one.
106
Nichols, Genius of Impeachment, 81.
This assertion is frequently attributed to Thomas Jefferson, but it does not appear in any of his known writings. The
veracity of the statement will have to stand on its own merits.
108 Adler, Virtues of the War Clause, 777-782, 782.
109 Edward D. Mansfield and Jack Snyder, “Democratization and the Danger of War,” International Security 20, no. 1 (summer
1995): 5-38.
107
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The Framers believed that the power to declare war should be in the people’s branch of government
because the people bear the burden of war and would be much less likely than the executive branch to go
to war. Now, Congress has abdicated its responsibility, and presidents wage war at will.
The Framers further put the preponderance of military force in the hands of state governments
because of the belief that a king with a standing army would be more inclined to use it. Congress, the
people’s branch, would have to raise an army for war and then return it. The president is now accustomed
to having a standing army. And, as predicted, he is inclined to use it.
Calling up the reserves and militia was once accompanied by a great deal of hand wringing and
forethought. Lyndon Johnson consciously and explicitly did not call up the National Guard because the
act would weaken public support for the war and for his social programs. Support for the war unraveled
nonetheless. In the post-Cold War era, calling up the reserves has become commonplace.
The practice of conscription was a further check on the government’s use of force. Government
officials would have to maintain a popular consensus to war because conscription, when fairly
implemented, draws a representative sample of the young male population. The all-volunteer force, by
definition self-selected, is not representative of the population at large.
Historians chronicled President Roosevelt’s assumption of the position of commander in chief as the
Second World War loomed. But the Cold War had a standing army, and each sitting president was a
standing commander in chief. The Cold War ended, but the president refused to return the reins of power
to Congress, and Congress lacked the wisdom and fortitude to take back the reins.110
All of these checks, the things that put the democratic peace theory into practice, have been
subverted. Still, the democratic peace theory is used to justify war, regime change, and the spread of
democracy to assure peace.
110 Jeremy D. Rosner, The New Tug of War: Congress, the Executive Branch, and National Security (Washington, D.C.: Carnegie
Endowment for International Peace, 1995).
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