War Powers Act of 1973

War Powers Act of 1973 Congress has declared war only five times in American history. Passed over President Richard Nixon's veto during the Vietnam War and the Watergate crisis, the War Powers Act (officially, the War Powers Resolution) provided a framework for “collective judgment” of Congress and the president regarding introduction of American armed forces into combat or imminent hostilities abroad. Reflecting increasing frustration over unilateral executive war making and covert actions abroad since the Korean War (1950), the joint resolution was one of several measures intended to help Congress restore its constitutional roles of declaring war and overseeing national security policies.

The act prescribes procedures for consulting, reporting, and terminating deployment of U.S. armed forces unauthorized by Congress. The president is required to: (1) consult Congress “in every possible instance” before deploying forces abroad; (2) report to both houses within forty‐eight hours and periodically about the circumstances and estimated duration of a deployment; and (3) terminate deployment within sixty days of the initial report unless Congress specifically approves or the president requests a thirty‐day extension to protect the safety of personnel. Congress is authorized to direct withdrawal at any time by concurrent resolution, which presidents cannot veto. To guide interpretation, the act disclaims inferences from statutes, appropriations, or treaties that presidents may commit forces without specific authorization; it also disclaims intentions to alter constitutional powers of the two branches.

Supporters hoped that these guidelines would improve both legislative capacity and executive accountability without crimping American leadership in international affairs. Critics of the act's legality and wisdom abound. Champions of Congress contend that the act unconstitutionally delegates legislative powers to authorize war and grants presidents dangerous blank checks to wage war for up to ninety days without congressional consent. Champions of executive supremacy, including all recent presidents, claim that the act invades independent presidential powers to conduct foreign policy and to function as commander in chief. Thus far, federal courts have declined to review these issues under devices like political questions, lack of ripeness, and standing to sue. Recall of troops by concurrent resolution may be unconstitutional under two Supreme Court decisions: Immigration and Naturalization Service v. Chadha (1983) and U.S. Senate v. Federal Trade Commission (1983). Law aside, pragmatists criticize the consultation clause as toothless and automatic deadlines as formalistic and inflexible. Congress, they say, should act overtly, not by inaction; and channels of consultation are less problematic than balancing practical needs for speed and secrecy in foreign affairs with the inherent difficulties of organizing two houses of Congress for effective policymaking.

The consensus is that the guidelines have not worked well in encouraging prior consultations and congressional authorization of wars. Covert operations are exempt unless regular U.S. military forces are involved. “Act now, inform later” has been the dominant presidential practice. Notable examples include Jimmy Carter's abortive attempt to rescue embassy hostages from Iran (1980); Ronald Reagan's interventions in Lebanon (1982), Grenada (1983), and the Persian Gulf (1987–1988); George H. W. Bush's ouster of President Noriega of Panama (1989); and William J. Clinton's interventions in the civil wars of Bosnia, Kosovo, and Macedonia (1993–2000).

Reporting has been more regular but grudging on fundamentals. The first and sole report to trigger the sixty‐day time limit concerned President Gerald R. Ford's Mayaguez crew rescue in 1975, sent near the end of the affair. To avoid the clock, subsequent reports usually were submitted as “consistent with” the act or disclaimed “imminent hostilities.” An ironic disclaimer was the huge buildup of military forces in late 1990 shortly before repelling Iraq's conquest of Kuwait.

Complicating these issues after the Cold War ended are increasing U.S. leadership in international peacekeeping and humanitarian operations under the auspices of NATO and the United Nations. By mid 2003, Congress had passed one statute and four joint resolutions authorizing in advance specific military deployments with other nations. These covered the Sinai occupation by U. N. forces (1981–1982); the Lebanon occupation (1983); expulsion of Iraq from Kuwait (1991); the “war on terrorism” after the World Trade Center and Pentagon attacks on 11 September 2001, which included actions against al Qaeda, and overthrow of Afghanistan's Taliban regime (2002); and the invasion of Iraq (2003). The resolutions are functional equivalents of the War Powers Act because they rest on substantial prior consultations and formal approval by each house of Congress and the president. Still, the legal conflict persisted. Legislators cited the act for authority; presidents relied on their powers “consistent with” the act and each resolution.

Effective enforcement of the act thus depends mainly on presidential needs for support and mobilizing Congress politically. The underlying dilemma remains: it takes two‐thirds of both houses to stop a presidential war but only “one‐third plus one” to sustain one. As a framework for executive‐legislative relations in a government of shared authority, the War Powers Act may facilitate interbranch communications and negotiations during crises, but critics view it as redundant. Experience suggests that the joint consensus essential to legitimating and sustaining effective warfare depends less on formal machinery than on comity and the political will of Congress and presidents in any situation.

Bibliography

John Hart Ely , War and Responsibility (1993).
Louis Fisher , Constitutional Conflicts between Congress and the President, 4th ed. (1997).
Richard F. Grimmet , The War Powers Resolution (2001).
Gordon Silverstein , Imbalance of Powers (1997).

J. Woodford Howard, Jr.