War Powers Resolution
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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).
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[edit] 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).
[edit] History
Under the Constitution, war powers are divided. 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.
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_public_laws&docid=f:publ243.107
The US government website, above, is an absolutely accurate copy of P.L. 107-243, which is the "Authorization for Use of Military Force Against Iraq Resolution of 2002." It included a statement from Public Law 105-235 (August 14, 1998) which "urged the President 'to take appropriate action, in accordance with the Constitution and relevant laws of the United States, to bring Iraq into compliance with its international obligations.'" It also includes an excerpt from United Nations Security Council Resolution 678 (1990) which "authorizes the use of all necessary means to (1) defend the national security of the United States against the continuing threat posed by Iraq; and, (2) to enforce United Nations Security Council Resolution 660 (1990)." See Section 3A of the Authorization to Use Military Force dated October 2, 2002, five months before the invasion of Iraq.
Thus, Congress authorized the use of military force for the express purpose of defending the national security of the United States against the continuing threat posed by Iraq, as well as to enforce UN resolutions, as long as the president took "appropriate" action and the president's means were "necessary."
The Saddam Hussein regime was toppled by the United States in March 2003, five months after Congress authorized the President to use military force against Iraq in October 2002.
Immediately after the 911 attack, the Constitution granted President George W. Bush temporary sole emergency war power to deal with the attack upon US soil. Once Congress granted war power to enforce UN resolutions, both the president and Congress were supposed to agree on any long term war commitments. However, Bush proceeded to topple the Saddam regime without mandated Congressional authorization. Fortunately for Bush, Congress (then dominated by Republicans)let him topple the Saddam regime.
The president, as Commander-in-Chief, is the sole arbiter of what is "appropriate" and "necessary," once a war begins.
Quoting directly from the War Powers Act of 1973:
"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 CONGRESS AND THE PRESIDENT will apply to the INTRODUCTION OF the 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."
Thus, under the War Powers Act of 1973, both the president and Congress share in the judgment of what is "APPROPRIATE" and "NECESSARY." Sharing of power is required both before and after hostilities begin. Once a war begins, the president, under the War Powers Act of 1973, is not the sole arbiter of what is "APPROPRIATE" and "NECESSARY."
Even before the passage of the War Powers Act of 1973, the United States Supreme Court emphasized that the Constitution mandated sharing of war power. In recent years, the Supreme Court emphasized that international law and Congressional decisions take precedence over the decisions of the president. So, the sharing of war power is not equal. Congress has greater power than the president to decide what is "APPROPRIATE" and "NECESSARY," though they share power.
EXAMPLE 1:
Youngstown Sheet & Tube Co., v. Sawyer (aka: Steel Seizure case): President Truman ordered US steel mills to supply Korean War needs, but the Supreme Court ruled that the president must comply with Congressional statutes.
EXAMPLE 2:
Hamdi v. Rumsfeld (2004) and Hamdan V. Rumsfeld (2006): President W. Bush asserted that, as Commander-in-Chief, he had unilateral authority to detain, and control the treatment of, enemy combatants. The Supreme Court rejected Bush's assertions, and ruled that a president must comply with Congressional statutes and international law.
[edit] 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. The legislature may be impeding the executive in carrying out the 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 instance, the Legislative branch attempted to control the removal of Executive branch officers.
IRAQ LIBERATION ACT OF 1998:
In 1998 both houses of Congress (at the time, both controlled by Republicans) created the "Iraq Liberation Act of 1998" (Sponsored by Rep Gilman) to authorize the president (then Bill Clinton) to remove Saddam Hussein from office and put a democracy in Iraq. The act severely limited President Clinton's methods to remove Saddam from power. It did not authorize Clinton to use military force for this purpose. It was designed to aid Iraqi insurgents to risk their own lives and take control of their own country. The president was required to inform Congress within 15 days before giving aid (funding TV or radio propaganda, humanitarian aid, military training, etc). President Clinton signed it into law.
AUTHORIZATION FOR USE OF MILITARY FORCE IN AFGHANISTAN, JANUARY 3, 2002 (SJ RES 23):
After the 911 attack, the president (then Republican George W. Bush) had automatic Constitutional authority to stop international terrorism directed against the United States. Both houses of Congress (then Republican) issued this "statutory authorization" (based upon Section 5(b) of the War Powers Resolution) for the use of military force, in Afghanistan, because they claimed that, after the 911 attack, the Al Qaeda, and any person or nation (such as the Taliban leaders of Afghanistan) who allowed them on their soil or aided their cause, represented a continuing "threat to national security and foreign policy of the United States."
AUTHORIZATION FOR THE USE OF MILITARY FORCE AGAINST IRAQ, H.J. Res. 114, Public Law 107-243, 107th Congress, OCTOBER 16, 2002:
Joint sessions of Congress (then both Republican) asked Republican President George W. Bush to "take appropriate action" to "bring Iraq into compliance with its international obligations."
In 1990 and 1991, a variety of UN Security Council Resolutions and the US Congress authorized the use of military force in Iraq.
The Authorization of Military Force in Iraq also included a reference to the "Iraq Liberation Act of 1998" (Public Law 105-338) calling for the replacement of Saddam Hussein by a democratic government.
On December 20, 2005, ABC News reported that vice-president Dick Cheney had described the War Powers Resolution as an "infringement on the authority of the president." [1]
[edit] See also
- War Powers Clause (of the Constitution)
[edit] 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
