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EspañolWAR POWERS RESOLUTION
(Redirected from War Powers Act)
The 'War Powers Act of 1973' (Public Law 93-148) limits the power of the President of the United States to wage war without the approval of Congress. The War Powers Act of 1973 is also referred to as the War Powers Resolution (Sec. 1).
The purpose of the War Powers Resolution is to ensure that Congress and the President share in making decisions that may get the U.S. involved in hostilities. Portions of the War Powers Resolution require the President to consult with Congress prior to the start of any hostilities as well as regularly until U.S. armed forces are no longer engaged in hostilities (Sec. 3); and to remove U.S. armed forces from hostilities if Congress has not declared war or passed a resolution authorizing the use of force within 60 days (Sec.. 5(b)). Following an official request by the President to Congress, the time limit can be extended by an additional 30 days (presumably when "unavoidable military necessity" requires additional action for a safe withdrawal).
Under the Constitution, war powers are divided, not equal. Congress has the power to declare war and raise and support the armed forces (Article I, Section 8), while the president is Commander in Chief (Article II, Section 2). It is generally agreed that the Commander in Chief role gives the president power to repel attacks against the United States and makes him responsible for leading the armed forces. During the Korean and Vietnam wars, the United States found itself involved for many years in situations of intense conflict without a declaration of war. Many Members of Congress became concerned with the erosion of congressional authority to decide when the United States should become involved in a war or the use of armed forces that might lead to war. The Senate and the House of Representatives achieved the 2/3 majority required to pass this joint resolution over President Nixon's veto on November 7, 1973.
Presidents have submitted 118 reports to Congress as a result of the War Powers Resolution, although only one (the Mayaguez situation) cited Section 4(a)(1) or specifically stated that forces had been introduced into hostilities or imminent danger.
Congress invoked the War Powers Resolution in the Multinational Force in Lebanon Resolution (P.L. 98-119), which authorized the Marines to remain in Lebanon for 18 months. In addition, P.L. 102-1, authorizing the use of U.S. armed forces concerning the Iraqi aggression against Kuwait, stated that it constituted specific statutory authorization within the meaning of the War Powers Resolution.
On November 9, 1993, the House used a section of the War Powers Resolution to state that U.S. forces should be withdrawn from Somalia by March 31, 1994; Congress had already taken this action in appropriations legislation. More recently, war powers have been at issue in former Yugoslavia/Bosnia/Kosovo, Iraq, Haiti, and in responding to terrorist attacks against the U.S. after September 11, 2001. After combat operations against Iraqi forces ended on February 28, 1991, the use of force to obtain Iraqi compliance with U.N. resolutions remained a War Powers issue, until the enactment of P.L. 107-243, in October 2002.[1]
The War Powers Resolution has been controversial since it became law, hardly settling the question of the division of powers between branches of U.S. government with regard to the declaration and the conduct of war. See Separation of powers under the United States Constitution for more on this topic.
There remain underlying questions about its constitutionality (though not a formal declaration of war) consistent with the provisions of the resolution. The reports to Congress required of the President have been drafted to state that they are "consistent with" the War Powers Resolution rather than "pursuant to" so as to take into account the Presidential position that the Resolution is unconstitutional.
One argument for the unconstitutionality of the War Powers Resolution — Philip Bobbitt's in "War Powers: An Essay on John Hart Ely's ''War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath''," ''Michigan Law Quarterly'' 92, no. 6 (May 1994): 1364–1400 — runs as follows: "The power to make war is not an enumerated power" and the notion that to "declare" war is to "commence" war is a "contemporary textual preconception"; the Framers of the Constitution believed that statutory authorization was the route by which the United States would be committed to war, and that 'declaration' was meant for only total wars, as shown by the history of the Quasi-War with France (1798–1800); in general, constitutional powers are not so much separated as "linked and sequenced"; Congress's control over the armed forces is "structured" by appropriation, while the president commands; thus the act of declaring war should not be fetishized. (Bobbitt, the nephew of Lyndon Johnson, also argues that "A democracy cannot… tolerate secret policies" because they undermine the legitimacy of governmental action.)
A second constitutionality argument concerns a possible breach of the 'separation of powers' doctrine, and whether this Act changes the balance between the Legislative and Executive functions. The President is bound by an Oath of Office: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability; preserve, protect, and defend the Constitution of the United States." (US Constitution, Article 2, Section 1, Clause 8). This type of constitutional controversy is similar to one that occurred under President Andrew Johnson with the Tenure of Office Act (1867). In that prior instance, the Legislative branch attempted to control the removal of Executive branch officers. Here, the separation of powers issue is whether the War Powers Resolution requirements for Congressional approval and Executive reporting to Congress change the constitutional balance established in Articles I and II, namely that Congress is explicitly granted the sole authority to declare war while the Executive has inherent authority as Commander in Chief.
There is also an unresolved legal question, discussed by Justice White in ''INS v. Chadha'' of whether a "key provision of the War Powers Resolution", namely 50 U.S.C. 1544(c), constitute an improper legislative veto. (See ''Chahda'', 462 U.S. 919, 971). The provisions in that section 5(c) state "such forces shall be removed by the President if the Congress so directs by concurrent resolution". Justice White argues in his dissent in ''Chadha'' that this is a violation of the Presentment clause. The majority in ''Chadha'' does not resolve the issue. Justice White does not address or evaluate in his dissent whether that section would fall within the inherent Congressional authority under Article I Section 8 to "make Rules for the Government and Regulation of the land and naval Forces."
★ War Powers Clause (of the Constitution)
Richard F. Grimmett "War Powers Resolution: Presidential Compliance" Congressional Research Service Report. Updated February 14, 2006
War Powers Act of 1973 (Public Law 93-148)
http://www.thecre.com/fedlaw/legal22/warpow.htm
Iraq Liberation Act of 1998, H.R.4655
Public Law: 105-338 (10/31/98) http://www.iraqwatch.org/government/US/Legislation/ILA.htm
Authorization For the Use of Military Force in Afghanistan in 2002 (date corrected), SJ RES 23 http://thomas.loc.gov/cgi-bin/query/z?c107:S.J.RES.23.ENR
AUTHORIZATION FOR THE USE OF MILITARY FORCE AGAINST IRAQ, H.J. Res. 114, OCTOBER 16, 2002
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_public_laws&docid=f:publ243.107
Congress and the presidency share war power, but the power of Congress is greater than the power of the president. If Congress says "no" the President must comply. International laws also take precedence over the president's war power.
http://www.acslaw.org/pdf/Kinkopf-Surge.pdf
Hamdi v. Rumsfeld (I and II):
http://pacer.ca4.uscourts.gov/opinion.pdf/027338.P.pdf.
★ http://www.yale.edu/lawweb/avalon/warpower.htm
★ Congressional Research Service (CRS) Reports regarding the War Powers Resolution
★ http://www.cs.indiana.edu/statecraft/warpow.html
★ http://www.au.af.mil/au/awc/awcgate/crs/rl32267.htm
The 'War Powers Act of 1973' (Public Law 93-148) limits the power of the President of the United States to wage war without the approval of Congress. The War Powers Act of 1973 is also referred to as the War Powers Resolution (Sec. 1).
| Contents |
| Provisions |
| History |
| Basis of Legality |
| See also |
| References |
| External links |
Provisions
The purpose of the War Powers Resolution is to ensure that Congress and the President share in making decisions that may get the U.S. involved in hostilities. Portions of the War Powers Resolution require the President to consult with Congress prior to the start of any hostilities as well as regularly until U.S. armed forces are no longer engaged in hostilities (Sec. 3); and to remove U.S. armed forces from hostilities if Congress has not declared war or passed a resolution authorizing the use of force within 60 days (Sec.. 5(b)). Following an official request by the President to Congress, the time limit can be extended by an additional 30 days (presumably when "unavoidable military necessity" requires additional action for a safe withdrawal).
History
Under the Constitution, war powers are divided, not equal. Congress has the power to declare war and raise and support the armed forces (Article I, Section 8), while the president is Commander in Chief (Article II, Section 2). It is generally agreed that the Commander in Chief role gives the president power to repel attacks against the United States and makes him responsible for leading the armed forces. During the Korean and Vietnam wars, the United States found itself involved for many years in situations of intense conflict without a declaration of war. Many Members of Congress became concerned with the erosion of congressional authority to decide when the United States should become involved in a war or the use of armed forces that might lead to war. The Senate and the House of Representatives achieved the 2/3 majority required to pass this joint resolution over President Nixon's veto on November 7, 1973.
Presidents have submitted 118 reports to Congress as a result of the War Powers Resolution, although only one (the Mayaguez situation) cited Section 4(a)(1) or specifically stated that forces had been introduced into hostilities or imminent danger.
Congress invoked the War Powers Resolution in the Multinational Force in Lebanon Resolution (P.L. 98-119), which authorized the Marines to remain in Lebanon for 18 months. In addition, P.L. 102-1, authorizing the use of U.S. armed forces concerning the Iraqi aggression against Kuwait, stated that it constituted specific statutory authorization within the meaning of the War Powers Resolution.
On November 9, 1993, the House used a section of the War Powers Resolution to state that U.S. forces should be withdrawn from Somalia by March 31, 1994; Congress had already taken this action in appropriations legislation. More recently, war powers have been at issue in former Yugoslavia/Bosnia/Kosovo, Iraq, Haiti, and in responding to terrorist attacks against the U.S. after September 11, 2001. After combat operations against Iraqi forces ended on February 28, 1991, the use of force to obtain Iraqi compliance with U.N. resolutions remained a War Powers issue, until the enactment of P.L. 107-243, in October 2002.[1]
The War Powers Resolution has been controversial since it became law, hardly settling the question of the division of powers between branches of U.S. government with regard to the declaration and the conduct of war. See Separation of powers under the United States Constitution for more on this topic.
Basis of Legality
There remain underlying questions about its constitutionality (though not a formal declaration of war) consistent with the provisions of the resolution. The reports to Congress required of the President have been drafted to state that they are "consistent with" the War Powers Resolution rather than "pursuant to" so as to take into account the Presidential position that the Resolution is unconstitutional.
One argument for the unconstitutionality of the War Powers Resolution — Philip Bobbitt's in "War Powers: An Essay on John Hart Ely's ''War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath''," ''Michigan Law Quarterly'' 92, no. 6 (May 1994): 1364–1400 — runs as follows: "The power to make war is not an enumerated power" and the notion that to "declare" war is to "commence" war is a "contemporary textual preconception"; the Framers of the Constitution believed that statutory authorization was the route by which the United States would be committed to war, and that 'declaration' was meant for only total wars, as shown by the history of the Quasi-War with France (1798–1800); in general, constitutional powers are not so much separated as "linked and sequenced"; Congress's control over the armed forces is "structured" by appropriation, while the president commands; thus the act of declaring war should not be fetishized. (Bobbitt, the nephew of Lyndon Johnson, also argues that "A democracy cannot… tolerate secret policies" because they undermine the legitimacy of governmental action.)
A second constitutionality argument concerns a possible breach of the 'separation of powers' doctrine, and whether this Act changes the balance between the Legislative and Executive functions. The President is bound by an Oath of Office: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability; preserve, protect, and defend the Constitution of the United States." (US Constitution, Article 2, Section 1, Clause 8). This type of constitutional controversy is similar to one that occurred under President Andrew Johnson with the Tenure of Office Act (1867). In that prior instance, the Legislative branch attempted to control the removal of Executive branch officers. Here, the separation of powers issue is whether the War Powers Resolution requirements for Congressional approval and Executive reporting to Congress change the constitutional balance established in Articles I and II, namely that Congress is explicitly granted the sole authority to declare war while the Executive has inherent authority as Commander in Chief.
There is also an unresolved legal question, discussed by Justice White in ''INS v. Chadha'' of whether a "key provision of the War Powers Resolution", namely 50 U.S.C. 1544(c), constitute an improper legislative veto. (See ''Chahda'', 462 U.S. 919, 971). The provisions in that section 5(c) state "such forces shall be removed by the President if the Congress so directs by concurrent resolution". Justice White argues in his dissent in ''Chadha'' that this is a violation of the Presentment clause. The majority in ''Chadha'' does not resolve the issue. Justice White does not address or evaluate in his dissent whether that section would fall within the inherent Congressional authority under Article I Section 8 to "make Rules for the Government and Regulation of the land and naval Forces."
See also
★ War Powers Clause (of the Constitution)
References
Richard F. Grimmett "War Powers Resolution: Presidential Compliance" Congressional Research Service Report. Updated February 14, 2006
War Powers Act of 1973 (Public Law 93-148)
http://www.thecre.com/fedlaw/legal22/warpow.htm
Iraq Liberation Act of 1998, H.R.4655
Public Law: 105-338 (10/31/98) http://www.iraqwatch.org/government/US/Legislation/ILA.htm
Authorization For the Use of Military Force in Afghanistan in 2002 (date corrected), SJ RES 23 http://thomas.loc.gov/cgi-bin/query/z?c107:S.J.RES.23.ENR
AUTHORIZATION FOR THE USE OF MILITARY FORCE AGAINST IRAQ, H.J. Res. 114, OCTOBER 16, 2002
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_public_laws&docid=f:publ243.107
Congress and the presidency share war power, but the power of Congress is greater than the power of the president. If Congress says "no" the President must comply. International laws also take precedence over the president's war power.
http://www.acslaw.org/pdf/Kinkopf-Surge.pdf
Hamdi v. Rumsfeld (I and II):
http://pacer.ca4.uscourts.gov/opinion.pdf/027338.P.pdf.
External links
★ http://www.yale.edu/lawweb/avalon/warpower.htm
★ Congressional Research Service (CRS) Reports regarding the War Powers Resolution
★ http://www.cs.indiana.edu/statecraft/warpow.html
★ http://www.au.af.mil/au/awc/awcgate/crs/rl32267.htm
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