War Powers Act
Overview
The War Powers Act of 1973
The War Powers Act (also known as the War Powers Resolution) of 1973 was enacted in
response to growing concerns that presidents had overstepped their constitutional authority by
engaging the United States military in prolonged conflicts without official declarations of war
from Congress. The War Powers Act (Public Law 93-148) maintains that the President can send
U.S. forces into action only by authorization of Congress, or if the U.S. is already under direct
attack. The President must notify Congress within 48 hours of committing troops to military
conflict. Moreover, U.S. forces are forbidden to remain in combat for more than 60 days, with a
30 day extension if needed, unless a formal declaration of war or authorization of the use of
military force is provided by Congress. The War Powers Act gives Congress the authority to
withdraw troops at any time provided that a concurrent resolution is passed by each house of
Congress. Concurrent resolutions are not subject to presidential veto.
The War Powers Act was initially vetoed by President Richard Nixon (R, 1969-1974) and
overridden by Congress.
War Powers and the Role of the President
The United States Constitution divides war powers between Congress and the President.
Article I, Section 8 of the U.S. Constitution grants Congress the power to declare war, control
war funding, raise and support the armed forces, and affirms the “Power…to make all Laws
which shall be necessary and proper for carrying into Execution…all other Powers vested by this
Constitution in the Government of the United States, or in any Department or Officer thereof.”
Article II, Section 2 of the U.S. Constitution states that, “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…”
Congress has officially declared war five times: the War of 1812 (1812-1815), The
Mexican-American War (1846-1848), the Spanish-American War (1898), World War I (19141918; the U.S. entered World War I in 1917) and World War II (1939-1945; the U.S. entered
World War II in 1941). Presidents have often interpreted their role as Commander-in-Chief as
allowing them to use the U.S. military to “…preserve, protect, and defend the Constitution of the
United States,” as stated in their Oath of Office. As a result, presidents have used the U.S.
military frequently without formal declarations of war from Congress. Some of the best known
examples of the president acting as Commander-in-Chief without a formal declaration of war
from Congress include the Civil War (1861-1865), the Korean War (1950-1953), the Vietnam
War (1964-1975), the Gulf War (1991), the Afghan War (2001-present), and the Iraq War (2003present).
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Constitutionality
Debate regarding the constitutionality of the War Powers Act continues because it limits
the president’s role as Commander-in-Chief of the armed forces. Critics further claim that the
Act violates the “separation of powers” doctrine by blurring the functions of the executive and
legislative branches of government. Do the requirements of Congressional approval and
Presidential reporting to Congress upset the balance established by Articles I and II of the
Constitution? Convincing arguments can be made on both sides. The founding fathers could not
have foreseen the future size and power of the U.S. military. Congress’ efforts to limit
presidential war powers with the War Powers Resolution stem from the view that the president’s
role as Commander-in-Chief has grown beyond the framers’ original intentions. Further, the
U.S. Supreme Court has thus far left this issue unresolved. Justice Byron White argues in his
dissent in Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983) that section
1544(c) of the War Powers Resolution, which asserts that forces shall be removed by the
President if Congress directs by concurrent resolution, is a violation of the Presentment Clause,
thus constituting an improper legislative veto. The Presentment Clause in Article I states that,
“Every Bill which shall have passed the House of Representatives and the Senate, shall, before it
become a Law, be presented to the President of the United States…”
Conclusion
The War Powers Resolution of 1973 attempts to limit presidential war powers by
requiring “collective judgment” of Congress and the president when responding to hostilities
concerning the U.S. Although the intent was to require that presidents consult with Congress
before taking military action, modern presidents have taken action before informing Congress,
especially when secret operations are involved. Recent examples of this presidential practice
include President Jimmy Carter’s (D, 1977-1981) attempt to rescue embassy hostages in Iran
(1980), and Ronald Reagan’s (R, 1981-1989) incursions in Lebanon (1982), Grenada (1983), and
the Persian Gulf (1987-1988). This trend continued with President George H.W. Bush’s (R,
1989-1993) removal of Panamanian President Manuel Noriega (1989), and President Bill
Clinton’s (D, 1993-2001) military interventions involving the civil wars of Bosnia, Kosovo, and
Macedonia (1993-2000). President George W. Bush (R, 2001-2009) secured authorization from
Congress for military action to overthrow the Taliban in Afghanistan (2002), and for the invasion
of Iraq (2002). Many view the War Powers Resolution as a positive way to increase
communication between the executive and legislative branches of government during times of
crisis, while critics view it as unnecessary and ineffective.
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