War Powers Act
WAR POWERS ACT
The War Powers Resolution (1973), which restricted the president's emerging powers to make war, was an effort by Congress to protect and reaffirm its constitutional prerogatives in foreign affairs. The constitutional delegation of powers in foreign policy, particularly in relation to warmaking authority, is fairly straightforward. Congress declares war, and the president "makes" or conducts it in his capacity as Commander in Chief. Relying on the "implied" or "inherent" executive authority to respond quickly and decisively to enemy attacks, however, during the twentieth century presidents sent American troops into conflicts of ever-increasing scope without prior Congressional declarations of war. President Theodore Roosevelt's "Roosevelt Corollary" to the Monroe Doctrine, for instance, provided for American intervention into Western Hemisphere countries, and such interventions were often of a military nature.
The real change in war-making authority occurred with the United States's emergence as a major world power after World War II. The nation became embroiled in situations around the world that markedly increased the likelihood of committing Americantroops in "emergency" situations. Furthermore, America became involved in a vast and demanding web of treaties that often called for military action. Compounding the growth of presidential authority in the war-making arena was congressional acquiescence. For various reasons, members of Congress had become skeptical of their institution's foreign policy capacity and deemed it prudent to grant the president a relatively free hand in such matters during the Cold War (1946–1991). The excesses of the Vietnam War forced a change in this posture, precipitating congressional reassertiveness.
The War Powers Resolution was the formal mechanism by which Congress hoped to take back from presidents some of its original foreign policymaking authority. Its important provisions are as follows. First, the resolution states that a president may legitimately act as Commander in Chief only when there is a declaration of war, specific statutory authorization to use force, or a national emergency created by an attack upon the United States, its territories or possessions, or its armed forces. Second, the act requires the president to consult Congress prior to committing troops and to continue doing so as long as troops remain on the ground. Third, and most crucially, the resolution requires a president, when engaging in hostilities "or enter[ing] into situations where imminent involvement in hostilities is clearly indicated by the circumstances," to file a report to Congress within forty-eight hours. The filing of this report then starts the "clock": after sixty days, the president must withdraw the troops. (If circumstances are such that it is impossible to get the forces out, thirty additional days are added.)
The act was passed in 1973 over President Richard M. Nixon's veto, and every subsequent president has treated it with contempt, often ostentatiously ignoring it. In the 1975 Mayaguez incident, for example, President Gerald Ford triggered the sixty-day clock by filing a report, but not before completing the operation. During the "Desert One" hostage rescue mission, President Jimmy Carter did not consult Congress until after the attempt had failed. Likewise, President Ronald Reagan refused to report after committing troops in Lebanon in 1982, prompting Congress to pass legislation in the fall of 1983 stating that the clock had begun ticking. (A suicide bombing that killed 230 Marines in their barracks led Reagan to withdraw the remaining forces before the time expired.) After the bombing of a German disco in 1986, Reagan also ordered a tactical air strike against Libya, relying on UN Article 51 for authorization and waiting to inform Congress of the strike until the planes were in the air.
During the first Gulf War, President George H. W. Bush declared repeatedly that he did not need any "authorization" from Congress, yet he did seek "support" from that body, which gave it to him by formally authorizing the war after a famous three-day debate in the Senate. When sending troops to Haiti in 1994, President Clinton initially sought to gain authorization from the UN Security Council. In response, the Senate unanimously passed an amendment stating that a Security Council Resolution "does not constitute authorization for the deployment of United States Armed Forces in Haiti under the Constitution of the United States or pursuant to the War Powers Resolution." President Clinton denied needing congressional authorization, but the situation was rendered moot after former president Carter negotiated a peaceful resolution of Haiti's situation.
war on terror
Most recently, the debate over the war powers has centered on two issues: the War on Terror that began in response to the terrorist attacks of September 11, 2001 and the 2003 invasion of Iraq. The perceived urgency of these situations led Congress in both instances to support, with resolutions clearly authorizing the use of force, President George W. Bush's decision to send troops into battle. On both occasions, Congress asserted that its use-of-force authorizations were consistent both with its constitutional responsibility and with the War Powers Resolution. Because the House and Senate were in substantial agreement about the need to use military force at the outset of these conflicts, the restrictions of the War Powers resolution never became a subject of meaningful debate. Furthermore, as the post-invasion occupation of Iraq became more costly and controversial, congressional dissenters were more apt to look toward the 2004 presidential campaign than to the mechanism of the War Powers act for a change in policy.
war and the constitution
Experience has shown that the War Powers Resolution is less effective as a legal instrument than as a means by which Congress can muster an institutional stance when dealing with foreign-policy issues. Congress's inability to force the president to conform to the legislation's requirements is underlined by the courts' refusal to provide judicial enforcement of its provisions. Nevertheless, the Congress has recourse to the statute's language and spirit when it wishes to assert its prerogatives against those of the executive. The War Powers Resolution makes it easier than was previously the case for members of Congress to persuade their peers that a president is overstepping the bounds of constitutional authority and engaging in actions that belong to the legislature.
Yet, in the seemingly endless and borderless War on Terror, the presidential need to respond quickly and decisively to unconventional, surprise attacks on American interests has undermined the effectiveness of the resolution. Executive-branch institutions such as the Central Intelligence Agency are critical to the successful prosecution of the war, and the American people are unlikely to countenance obstructions to presidential efforts to destroy terrorist threats with force. In a new world characterized by a combination of American hegemony and terroristic resistance to that hegemony, the president's constitutional authority to use military force in emergency situations has cemented for the foreseeable future the executive branch's supremacy in the field of war-making. Even in this uncertain era of persistent and sudden military activity, however, should the American people and their congressional representatives sense that a president is needlessly and improperly risking the lives of American troops—and the occupation of Iraq has stirred such debate—the War Powers Resolution remains available to Congress as a way to structure the broader debate.
Collier, Ellen C. "The War Powers Resolution: Twenty Years of Experience." Congressional Research Service Report No. 94-42F (1994).
Grimmett, Richard F. "War Powers Resolution: Presidential Compliance." Congressional Research Service Issue Brief No. 81950 (1996).
"War Powers Resolution (complete text)." Avalon Project at Yale Law School. Available from <http://www.yale.edu/lawweb/avalon/warpower.htm>.
Paul T. McCartney