The War Powers Resolution (Public Law 93-148) limits the power of the President of the United States to wage war without the approval of the Congress. The Resolution is sometimes referred to as the War Powers Act, but that is an older law intended to define limits on trade with enemies during wartime.

History

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.

Provisions

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 addition action for a safe withdrawl).

Questions about constitutionality

Every president to date has declared the War Powers Resolution to be unconstitutional, and the Supreme Court has struck down the 'legislative veto' embodied in Section 5(c) of the Resolution in the case INS v. Chadha (1983). However, in every instance since the act was passed, the President has requested and received authorization for the use of force (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 Presidental position that the Resolution is unconsitutional.

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 only meant for total wars, as shown by the history of the French Naval War (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. (It should be noted, however, that Bobbitt, the nephew of Lyndon Johnson, also argues that "A democracy cannot . . . tolerate secret policies" because they undermine the legitimacy of governmental action.)

The intended purpose of the act was to serve as a check on the power of the President to commit the United States to military action by exercising the constitutional authority of Congress to declare war under Article One. Many constitutional scholars have questioned the usefulness of the resolution, pointing out that Congress has tended to defer to the Executive when conducting war.

See also

War Powers Clause (of the Constitution)

External link

• http://www.yale.edu/lawweb/avalon/warpower.htm