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.

WAR POWERS ACT

WAR POWERS ACT. The Constitution of the United States names the president commander in chief of the U.S. armed forces, but it also explicitly assigns to Congress the authority to declare war. Not distinguishing clearly between the authority to initiate war and the authority to wage it, this distribution of war-making authority has fostered ambiguity and political controversy. In practice, chief executives have routinely employed the U.S. military without congressional mandate, especially during the Cold War. The purposes for which presidents have deployed U.S. forces range from a show of force to minor hostilities to large-scale warfare. Although such actions have not been uniformly popular, the persistence of a consensus regarding U.S. foreign policy has usually muted any discord about presidents exceeding their constitutional prerogatives.

That consensus collapsed with the Vietnam War. Presidents Lyndon B. Johnson and Richard M. Nixon cited the Tonkin Gulf Resolution of August 1964 as congressional authorization for U.S. involvement in and escalation of the Vietnam War. The conflict proceeded without any formal declaration of war and became increasingly unpopular as it dragged on. Critics attributed the costly U.S. involvement to a failure to prevent successive presidents from usurping authority that rightly belonged to the legislative branch. This perception provoked calls for Congress to reassert its prerogatives. Such thinking culminated in passage of the War Powers Resolution of November 1973 over President Nixon's veto. The resolution directed the president to consult Congress prior to introducing U.S. forces into hostilities; it required the president to report to Congress all nonroutine deployments of military forces within forty-eight hours of their occurrence; and it mandated that forces committed to actual or imminent hostilities by presidential order be withdrawn within sixty days unless Congress declared war, passed legislation authorizing the use of U.S. forces, or extended the deadline. The sixty-day time limit could be extended to ninety days if the president certified the need for additional time to complete the withdrawal of U.S. forces.

Heralded as a congressional triumph, the War Powers Resolution proved limited in practice. Presidents continued to insist that the resolution infringed on constitutional executive authority. Time and again, they circumvented or disregarded its provisions. Among the notable presidential flouters were Gerald Ford in 1975, at the time of the Mayaguez operation; Jimmy Carter in 1980 with the Desert One hostage rescue attempt; Ronald Reagan in 1983 with the intervention in Grenada and in 1986 with the air attack on Libya; and George Bush with the 1989 invasion of Panama. Even the U.S. military response to the Iraqi invasion of Kuwait in August 1990 lacked a congressional mandate. President Bush relied on executive authority in ordering the U.S. buildup of 500,000 troops in the Persian Gulf, showing more interest in the endorsement of the United Nations Security Council than of the U.S. Congress. Only when U.S. forces were in place and the decision to use force had been made did Bush consult Congress, less for constitutional than for political reasons. On 12 January 1991 Congress narrowly passed a resolution authorizing Bush to do what he clearly intended to do anyway—forcibly eject Iraqi troops from Kuwait. When Operation Desert Storm began four days later, the usefulness of the War Powers Resolution seemed more problematic than ever, and the goal of restoring a division of war-making powers ever more elusive.

BIBLIOGRAPHY

Caraley, Demetrios, ed. The President's War Powers: From the Federalists to Reagan. New York: Academy of Political Science, 1984.

Kohn, Richard H., ed. Military Laws of the United States from the Civil War Through the War Powers Act of 1973. New York: Arno Press, 1979.

May, Christopher N. In the Name of War: Judicial Review and the War Powers since 1918. Cambridge, Mass.: Harvard University Press, 1989.

Andrew J.Bacevich/c. w.

See alsoGrenada Invasion ; Hostage Crises ; Mayaguez Incident ; Panama Invasion ; Persian Gulf War of 1991 ; Tonkin Gulf Resolution ; War and the Constitution ; War Powers .

War Powers Act. Adopted by Congress in 1973 over President Richard M. Nixon's veto, this resolution stemmed from legislators' perception that Presidents Lyndon B. Johnson and Nixon had abused the Constitution's war‐making powers during the Vietnam War. The act required the president to consult with Congress “in every possible instance” before introducing armed forces “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” It also required the president to report any such deployments to Congress within forty‐eight hours, and stipulated that if within sixty days Congress refused to endorse the president's use of force, the troops must return home—with a thirty‐day extension to assure a safe withdrawal. The resolution also permitted Congress to force the withdrawal of U.S. troops from a region at any time by majority vote, without presidential recourse to a veto. In 1983 the Supreme Court invalidated this provision, ruling that only a congressional joint resolution, subject to a presidential veto, could force a withdrawal.

The War Powers Act did not work as its proponents anticipated, since presidents failed to notify Congress of troop deployments that would start the sixty‐day clock. Yet it remained in force, a potential check on the president's authority to deploy U.S. military force abroad.
See also Federal Government, Executive Branch: The Presidency; Federal Government, Legislative Branch.

Bibliography

Michael J. Glennon , Constitutional Diplomacy, 1990.
Louis Fisher , Presidential War Power, 1995.

Loch K. Johnson

War Powers Act (USA, 1973) A US law designed to constrain the President in his war-making powers independent of Congress. It followed upon public outcry after the Gulf of Tonkin incident, and the subsequent actions of US Presidents. Enacted over the veto of President Nixon, it provides that Congress should be informed within 48 hours of any overseas military activity. Congress should endorse any military action overseas by the USA within 60 days, after which it may order withdrawal without the option of a presidential veto.