War Powers Resolution (1973)

Louis Fisher

Excerpt from the War Powers Resolution

Sec. 2. (a) It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and 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 circum stances, and to the continued use of such forces in hostilities or in such situations.

(b) Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.

(c) 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 pur suant 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.

After World War II, Congress watched its institutional powers decline. President Harry Truman's military initiatives in Korea in 1950 and the escalation of the Vietnam War by President Lyndon B. Johnson beginning in 1965 both contributed to this reduced role for Congress. In an effort to restore its prerogatives and limit presidential wars, Congress passed the War Powers Resolution in 1973 (P.L. 93-148, 87 Stat. 555). However, in many instances the statute contradicts itself, reflecting major differences between the House and the Senate. Despite passage of the act, in the years since 1973 presidents have continued to dominate decisions concerning military operations.

DRAFTING THE BILL

In 1970 the House of Representatives passed by a vote of 289 to 39 a bill recognizing that the president "in certain extraordinary and emergency circumstances has the authority to defend the United States and its citizens without specific prior authorization by the Congress." Instead of trying to define the precise conditions under which presidents may use military force, the House preferred to rely on procedural safeguards. The bill required the president, "whenever feasible," to consult with Congress before sending American forces into armed conflict. He was also to report (1) the circumstances necessitating the action; (2) the constitutional, legislative, and treaty provisions authorizing the action, together with his reasons for not seeking specific prior congressional authorization; and (3) the estimated scope of activities. The Senate did not act on this measure.

Later, both houses of Congress passed legislation that went beyond mere reporting requirements. Following its earlier model, the House of Representatives did not try to define or codify presidential war powers. It directed the president "in every possible instance" to consult with Congress before sending forces into hostilities or situations where hostilities might be imminent. If unable to do so, he was to report to Congress within seventy-two hours, setting forth the circumstances and details of his action. Unless Congress declared war within 120 days or specifically authorized the use of force, the president had to terminate the commitment and remove the troops. Congress could also direct disengagement at any time during the 120-day period by passing a concurrent resolution, which must pass both houses but is not presented to the president for his signature or veto.

Senators, regarding the House bill as too favorable to presidential power, decided to spell out the conditions under which presidents could act alone without Congress. Armed force could be used in three situations:

1. To repel an armed attack on the United States, or its territories and possessions, to retaliate in the event of such an attack, and to prevent the direct and imminent threat of such an attack.
2. To repel an armed attack against U.S. armed forces located outside the United States, or its territories and possessions, and prevent the direct and imminent threat of such an attack.
3. To rescue endangered American citizens and nationals in foreign countries or at sea.

The Senate bill also required the president to cease military action unless Congress, within thirty days, specifically authorized the president to continue. A separate provision allowed him to act militarily beyond the thirty-day limit if he determined that "unavoidable military necessity respecting the safety" of the armed forces required their continued use for purposes of "bringing about a prompt disengagement." Efforts to legislate presidential war powers carried a number of risks. Presidents and officials of the executive branch could broadly interpret such terms as "necessary and appropriate retaliatory actions," "imminent threat," and "endangered citizens."

THE FINAL BILL

The two houses settled on a compromise measure. Instead of the 120-day House limit and the thirty-day Senate limit, the final bill allowed the president to use military force for up to sixty days, with an additional thirty days to permit disengagement. The bill directed the president "in every possible instance" to consult with lawmakers, and required the president to report to Congress within forty-eight hours. At any time during military operations, Congress could pass a concurrent resolution directing that U.S. troops be removed.

As the bill emerged from Congress, a number of lawmakers who had initially offered support now spoke out in opposition. Senator Thomas Eagleton, a Democrat from Missouri and one of the original sponsors, denounced the conference product as a "total, complete distortion of the war powers concept." Instead of the three exceptions specified in the Senate bill and the thirty-day limit, the conference version gave the president carte blanche authority to use military force anywhere, for any reason, for up to ninety days. Eagleton confessed to being "dumbfounded." With memories so fresh about presidential extension of the war in Vietnam, he argued, "how can we give unbridled, unlimited total authority to the president to commit us to war?" In his view, the bill, after being nobly conceived, had "been horribly bastardized to the point of being a menace."

President Nixon vetoed the bill primarily because he regarded it as impractical and dangerous to establish in a statute the procedure by which the president and Congress should share the war power. He also believed that the legislation encroached on the president's constitutional responsibilities as Commander in Chief. Both Houses mustered a two-thirds majority to override the veto: the House narrowly (284 to 135), the Senate by a more comfortable margin (75 to 18).

Some of the congressional support for the override reflected party politics and a willingness to settle for symbolic value over substance. Fifteen members of the House, after voting against the House bill and the conference version because they surrendered too much power to the president, now voted for the override. To be consistent, they should have sustained the veto to prevent the bill from becoming law. Some of the fifteen voted for the override because they feared that a vote to sustain might lend credence to the views advanced in Nixon's veto message. Others among the fifteen believed that a vote to override would help propel the House to impeach Nixon. Democratic Representative Bella Abzug of New York voted against the House bill and the conference version because they expanded presidential war power. Yet she strongly supported a veto override: "This could be a turning point in the struggle to control an administration that has run amuck. It could accelerate the demand for the impeachment of the President."

ANALYZING THE STATUTE

According to section 2(a) of the War Powers Resolution, it was the purpose of Congress

to fulfill the intent of the framers of the Constitution of the United States and 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 statute falls short on both goals. Allowing the president to initiate war for up to ninety days does not fulfill the intent of the framers, and nothing in the statute insures the collective judgment of both branches in the use of military force.

The framers placed in Congress not only the sole authority to declare war, but to initiate any kind of offensive operations, big and small. They limited the president's initiative to defensive war for the purpose of repelling sudden attacks. Deliberations at the Constitutional Convention and the ratifying conventions demonstrate that the framers embraced three notions: (1) the principle of collective decision making, (2) the concept of shared power in foreign affairs, and (3) the democratic ideal that war power is placed with the legislative branch, which is the branch closest to the people. At the Pennsylvania ratifying convention, James Wilson expressed the prevailing sentiment that the system of checks and balances "will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large." The War Powers Resolution replaces that value with a trust in, or acceptance of, presidential wars.

Military initiatives from presidents in the years following the War Powers Resolution reveal a glaring deficiency in the statute. The resolution is written in such a way that the sixty- to ninety-day clock begins ticking only if the president reports under a very specific section: not section 4, not section 4(a), but only section 4(a)(1). Not surprisingly, presidents do not report under 4(a)(1). They report, for the most part, "consistent with the War Powers Resolution." The only president to report under 4(a)(1) was Gerald Ford in the capture of the Mayaguez ship in Cambodia. But even in that case, his report had no substantive importance because it was issued only after the military operation had been completed.

Finally, the use of a concurrent resolution to control the president is of questionable potency because of the Supreme Court's decision in INS v. Chadha (1983). This ruling struck down the legislative veto—one-house or two-house—as unconstitutional. The Court said that whenever Congress wants to control the executive branch it has to act not merely by both houses but in a bill or joint resolution that is presented to the president. In response to Chadha, Congress considered amending the War Powers Resolution to replace the concurrent resolution with a joint resolution. Instead, the 1983 amendment was enacted as a freestanding statute, providing expedited procedures that can be used to force the president to withdraw troops.

JUDICIAL INVOLVEMENT

On four occasions during the 1980s, members of Congress went to court to charge that President Ronald Reagan had violated the War Powers Resolution. The first case, Crockett v. Reagan (1982), involved his sending military advisers to El Salvador. A district court refused to do the fact-finding that would have been necessary to determine whether hostilities or imminent hostilities existed in El Salvador. The judge pointed out that Congress had failed to act legislatively to restrain Reagan. A similar case was Conyers v. Reagan (1984). Eleven members of Congress brought action against President Reagan for his invasion of Grenada in 1983. The district court declined to exercise its jurisdiction because lawmakers had failed to use available powers within their own institution. Two other cases, involving President Reagan's activities in Nicaragua and his use of military force in the Persian Gulf, were avoided by the courts on similar grounds (Sanchez-Espinoza v. Reagan, [1983], Sanchez-Espinoza v. Reagan, [1985], Lowry v. Reagan, [1987]). The judicial advice was consistent: if Congress fails to defend its prerogatives, it cannot expect to be bailed out by the courts.

Later cases struck the same note. In 1990, when President George H. W. Bush sent troops to Saudi Arabia and neighboring countries to prepare for war against Iraq, a federal court turned aside a lawsuit brought by members of Congress who charged that he had acted without legal authority. The court concluded that only if Congress confronted the president as an institution, acting through both houses, would the case be ready for the courts (Dellums v. Bush, [1990]). Essentially the same result occurred when Representative Tom Campbell, a Republican of California, went to court with twenty-five other House colleagues to seek a declaration that President Bill Clinton had violated the Constitution and the War Powers Resolution by conducting an air offensive in Yugoslavia without congressional authorization. A district court held that Campbell lacked standing to bring the suit. Congress had never, as an institution, directed Clinton to cease military operations. That decision was upheld on appeal (Campbell v. Clinton, 1999).

Congress has been unwilling to confront the president with legislative restrictions, and the courts decline to reach the merits of these cases unless lawmakers have exercised powers available to them. As a result, presidents may initiate and conduct wars whenever and wherever they like. In this fundamental respect, the framers' model of a system of checks and balances, with each branch able and willing to fight off encroachments from other branches, and with the power to initiate war securely vested in Congress, has failed.

See also: National Security Act of 1947.

BIBLIOGRAPHY

Adler, David Gray. "The Constitution and Presidential Warmaking: The Enduring Debate." Political Science Quarterly 103 (1988): 1–36.

Adler, David Gray, and Larry N. George, eds. The Constitution and the Conduct of American Foreign Policy. Lawrence, KS: University Press of Kansas, 1996.

Eagleton, Thomas F. War and Presidential Power: A Chronicle of Congressional Surrender. New York: Liveright, 1974.

Ely, John Hart. War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath. Princeton, NJ: Princeton University Press, 1993.

Fisher, Louis. Presidential War Power, 2d ed. Lawrence, KS: University Press of Kansas, 2004.

Fisher, Louis, and David Gray Adler. "The War Powers Resolution: Time to Say Goodbye." Political Science Quarterly 113 (1998): 1–20.

Hess, Gary R. Presidential Decisions for War: Korea, Vietnam, and the Persian Gulf. Baltimore, MD: Johns Hopkins Press, 2001.

Javits, Jacob K. Who Makes War: The President Versus Congress. New York: Morrow, 1973.

Powell, H. Jefferson. The President's Authority Over Foreign Affairs: An Essay in Constitutional Interpretation. Durham, NC: Duke University Press, 2002.

Weissman, Stephen R. A Culture of Deference: Congress's Failure of Leadership in Foreign Policy. New York: Basic Books, 1996.

Wormuth, Francis D., and Edwin B. Firmage. To Chain the Dog of War: The War Power of Congress in History and Law, 2d ed. Urbana, IL: University of Illinois Press, 1989.

Presidential Perspective

Throughout U.S. history, presidents have routinely deployed military forces without the consent of Congress. While these actions have not always been popular, serious opposition to the practice did not arise until Presidents Lyndon Johnson and Richard Nixon conducted the conflict in Vietnam without a declaration of war or the authorization of Congress. The movement to pass the War Powers Resolution grew out of increasing frustration with the deadly, costly, and seemingly unwinnable conflict, and out of personal antagonism toward Nixon himself. (As Senator Gaylord Nelson of Wisconsin memorably stated, "I love the Constitution, but I hate Nixon more.") Nixon vetoed the resolution on the grounds that it was both unconstitutional and dangerous. He argued that the sixty-day limit on presidential authority could "prolong or intensify a crisis" by discouraging an adversary from serious negotiations before the sixty days were up or escalating hostilities to achieve particular objectives, in hopes that Congress would then force the president to withdraw. Congress passed the resolution over Nixon's veto. Since then, presidents have consistently taken Nixon's perspective, and have reverted to tradition by continuing to deploy military forces on their own authority. Every U.S. president since Nixon has been accused of violating the War Powers resolution.