War Powers Act: A Personal Opinion!

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The War Powers Act

By Karl Kleinpaste

At least, it usually seems to be called the War Powers Act. It's actually the War Powers Resolution, not that I'm convinced anyone cares. But then the problem seems to be that no one cares one bit about the whole thing...

The War Powers Act is found as 50 USC S.1541-1548, passed in 1973 over the veto of President Nixon. It's supposed to be the mechanism by which the President may use US Armed Forces. It purports to spell out the situations under which he may deploy the Forces with and without a Congressional declaration of war.

The particularly relevant portion is S.1541(c), which reads:

(c) Presidential Executive Power as Commander-in-Chief; Limitation 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 pursuant 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.

I've been thinking about this with regard to US involvement in Iraq, specifically our recent bombing runs in retaliation for violations of UN no-fly zone directives, but more generally our whole presence there since late 1990. [Editor's note: the "no-fly zones" were unilaterally declared by the US and Britain, not by the UN, as represented by domestic media. Therefore, Constitutional issues aside, the US was in violation of international law when it "struck Saddam" (i.e., bombed Iraqis) at the beginning of this year. -- JBE.]

Congress hasn't declared a proper war since the 1940s, so 1541(c)(1) is out. The United States itself hasn't been attacked, nor have its territories, since Pearl Harbor, which pretty much cancels 1541(c)(3). That leaves "specific statutory authorization" in 1541(c)(2), and the legal commentary I have sitting on the desk beside me observes that there has never yet been a resolution or authorization made with respect to the War Powers Act since passage. A lot of good the War Powers Act has done us so far.

So on exactly what basis have we sent 500,000 people to the Gulf?

This bothers me a lot. I don't want to give the impression that I'm unhappy with our presence there, or with having given Hussein something I think he deserves for being, literally, a world-class jerk. (That's also not to say there aren't portions of me which nonetheless worry over the morality of such a huge defense for oil when things like Somalia have been needing support of one kind or another since well before 1990.) On the whole, I think our presence has been a good thing, even if I don't like the US having to play World Policeman; it's surely a politically popular action for Bush to have taken; it's been quite successful, on the whole.

But what business have we had going there at all? The Constitution is pretty darn specific that only Congress may declare war. Everyone, including Bush, refers to the action there two years ago as "The Gulf War." We fought a short, easily-won, comparatively cheap war (especially in terms of casualties). How does Bush (or how does any President) justify this?

For one thing, you'll find lots of noises made by Presidents about how they've complied with all the "advisory" portions of the War Powers Act. That is, Bush has gone out of his way on occasion to comply with S.1543, which is what requires the President to report to Congress within 48 hours. Somehow, though, the part in S.1544 gets missed. This is the section that reads in part, "Within 60 calendar days after a report is submitted ... the President shall terminate any use of United States Armed Forces" unless Congress declares war, grants a 60-day extension, or has been unable to meet due to attack on the US itself.

It seems to me that, between deployment of Operation Desert Shield and the beginning of Operation Desert Storm, there were considerably more than 60 days. August to January. And Congress never granted any such extensions. (Again, there has yet ever to be any kind of authorization made by Congress with respect to the War Powers Act.)

When it comes to US governmental actions, I'm a stickler for procedure. Checks and balances are only meaningful if the checks are made and the scales rebalanced as a result. I've expressed similar thoughts with regard to, e.g., forfeiture and RICO when it was being argued last month. The procedure is pretty clear. The lack of application of the procedure also seems clear. To me, anyway.

Granted, there are questions regarding the constitutionality of the War Powers Act in the first place. When Nixon vetoed it in the first place, he wrote that the act attempted to intrude on "authorities which the President has properly exercised under the Constitution for almost 200 years." Given what this commentary refers to as the "popular distrust" of Nixon (now there's an understatement), one can see how and why a veto override majority was achieved. (Somebody refresh my memory for me: Is a veto override done with 2/3 or 3/4?)

But aside from Nixon, there's also argument such as this: "The pattern against which the [Resolution] protests is old, familiar, and rooted in the nature of things. There is nothing constitutionally illegitimate or even dubious about 'Undeclared' wars. We and other nations fought them frequently in the eighteenth and nineteenth centuries, as well as in the twentieth. [The Resolution] would turn the clock back to the Articles of Confederation, and destroy the Presidency which it was one of the chief aims of the men of Annapolis and Philadelphia to create." (Rostow, Great Cases Make Bad Law: The War Powers Act, 50 Tex. L. Rev. 833, 855-856, 900 [1972].)

This is to say, undeclared wars exist, whether we like them or not, and we have to fight them, whether we like it or not. There are several lines of support here, among them "self-defense" of the US, by which reasoning we did pre-emptive things in the Mexican War, as well as the US' obligation as a member of the Organization of American States, under which defense we invaded Grenade.

I see these lines of reasoning and I don't like them. They skirt the issue that Congress is where the choice to wage war is decided. The President as commander-in-chief is there to wage a war which Congress has decided must be fought.

In line with this, there is this argument: "The `inherent' powers to which the opponents of the War Powers Resolution make reference are really [powers] thought to be inherent because the President has historically exercised them. But they are powers the President has exercised in the absence of any congressional objection. [Mere] historical acquiescence by Congress in the President's exercise of a particular power does not by itself prove that Congress lacks the authority to limit the exercise of that power when it gathers the wisdom and courage to do so." (Carter, The Constitutionality of the War Powers Resolution, 70 Va. L. Rev. 101, 125 [1984].)

I tend to accept this line of reasoning far more. Not incidentally, I think it speaks of the lack of testicular fortitude on the part of Congress to stand up and be counted as being either for or against the President's use of the Armed Forces in any of the situations in which the War Powers Act directs the Congress to act. Congress' "acquiescence" to the President indicate that, as a point of fact if not legislative theory, the President can do pretty much whatever he damn well pleases with the Armed Forces.

I'm bummed. I don't like this. Congress gets yet another black mark for its (lack of) behavior, the President operates without Congress having declared the wars being fought, the DoD uses its deployment to argue for bigger budgets at a time when its budget (and its role) rightly ought to be diminishing...

Lastly, and interestingly enough, I think a black mark goes on the judiciary as well, in that no one has seen fit to address the constitutionality of the War Powers Act. There is justifiably some argument over whether the War Powers Act is legit. One would think that one of these many uses of the Armed Forces would induce someone in an appropriate position to file suit against the Presidency for having failed the War Powers Act, which would lead rather quickly to the Supreme Court having to render a decision as to exactly how far the legitimacy of the War Powers Act extends.

This hasn't happened.


An interesting argument arises out of the use in the War Powers Act of the phrase "United States Armed Forces." That specifically does not include, e.g., CIA covert military operations. Nasty. This was one of the big problems with Oliver North and friends.


  • Stone, Seidman, Sunstein, and Tushnet. Constitutional Law, 2nd edition, 1991. It's a standard law school text, used by (e.g.) Case Western Reserve University School of Law for its constitutional law courses.

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