The War Powers Resolution was passed in 1973 by both Houses of Congress, overriding the veto of President Nixon. It was passed to reassert Congressional authority over the decision to send American troops to war. After President Nixon ordered the bombing of Cambodia without Congress’s consent, Congress passed the War Powers Resolution of 1973, intended to limit the president’s authority to conduct war.
At the time, President Richard Nixon vetoed the bill on constitutional grounds, arguing that the measure would define presidential war powers “in ways which would strictly limit his constitutional authority.” Nonetheless, a two-thirds majority in each congressional chamber overrode the veto.
The War Powers Resolution requires the president to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30-day withdrawal period, without a congressional authorization for use of military force or a declaration of war by the United States.
There have been several instances when the President has not notified Congress within the required 48 hours. In the case of the attack on General Soleimani the Trump administration made such a notification. However it would be easy to argue that Congress has already authorized military activities in Iraq and therefore that such a notification was not required.
Yesterday Congressional Democrats, seemed blissfully unaware of then-President Barack Obama’s rather expansive interpretation of the War Powers Resolution of 1973 during his strategically disastrous 2011 operation to oust Libyan strongman Muammar al-Qaddafi, suddenly seemed to care an awful lot about constitutional norms and separation of powers principles. Intellectual hypocrisy again.
Specifically, Speaker Nancy Pelosi’s House of Representatives debated whether to Congressionally impose War Powers Resolution limitations upon President Trump’s unilateral ability to ratchet up militancy actions with the Islamic Republic of Iran. In their crusade to hamstring the president’s conduct of his foreign policy vis-à-vis the Iranian regime, House Democrats even found several libertarian-leaning Republican allies.
In my opinion this exercise was misguided, because the War Powers Resolution is, and always has been, unconstitutional. It has never been challenged in the courts. This most recent effort was really an attempt by the Democrats to embarrass the president.
The Constitution divides foreign affairs powers between the legislative and executive branches. Among other enumerated powers in Article I, Section 8, Congress has the ability to “declare War,” “raise and support Armies,” “provide and maintain a Navy,” “make Rules for the Government and Regulation of the land and naval Forces,” “provide for calling forth the Militia,” and “provide for organizing, arming, and disciplining, the Militia.”
On the other hand, Article II of the Constitution provides that “[t]he President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” The very first clause of Article II also vests the president with “[t]he executive Power” — meaning a “residual” foreign affairs power that encompasses all those powers not expressly delegated to Congress in Article I, Section 8.
Many legal scholars have conducted a careful, line-by-line overview of Congress’s enumerated powers and have concluded that the constitution does not provide a legislative means that could feasibly justify the War Powers Resolution. The most likely candidate is the Declare War Clause, but that provision happens to be woefully misunderstood by many lawyers and politicians across the ideological spectrum.
Congress can intervene to halt a president if it views a reckless warmonger is using the manifold tools it has at its disposal:
- Decreasing the size of the Pentagon’s budget by going line item-by-line item and removing various offensive-oriented materiel from the Department of Defense’s arsenal, or using its more general power of the purse to defund a war effort in its entirety
- This was what eventually happened in the Vietnam War case.
This interpretation of the Declare War Clause should not be nearly as controversial as it is. At the 1787 constitutional convention, the Framers actually conscientiously substituted out “make War” with “declare War.” In so doing, James Madison explained that it was imperative to leave to the president the “power to repel sudden attacks.” This ought to make a great deal of sense; as Alexander Hamilton would explain only six months after the constitutional convention in The Federalist No. 70, “[d]ecision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number.”
Finally, in Article I, Section 10, the Constitution precludes a state from “engag[ing] in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” The Framers were therefore aware of multiple verbs — “make” and “engage” — that could have clearly conveyed the meaning of an initiation of hostilities. But they didn’t use those words, and they didn’t use them for a reason. The Framers understood that there was great merit to leaving decisions such as the commencement of hostilities to one man, and not to a fractious Congress.
Congress already has a number of tools at its disposal to push back against a crusading commander-in-chief. As Andrew McCarthy wrote this week at Fox News, “No statute is needed to provide Congress with the power to frustrate unauthorized presidential war-making. The Constitution empowers the legislature to do so by simply refusing to appropriate funds for military action.” But the Declare War Clause means something fundamentally different than what many believe it does.
No president, to date, has abided by the war powers act! Grenada, Lebanon, Panama, Libya being cases in point. They have avoided a legal show down by advising Congress after the fact of military action. President Obama in 2016 wrote: “I am providing this supplemental consolidated report, prepared by my Administration and consistent with the War Powers Resolution (Public Law 93-148), as part of my efforts to keep the Congress informed about deployments of U.S. Armed Forces equipped for combat.” The term “consistent with” has been used by multiple presidents. They were saying that their notification was not “as required” by the resolution, but “consistent with” it.. This wording was used to avoid a legal challenge to the requirements for notification of Congress for fear of the president losing to a liberal judiciary and thus a resulting limitation on presidential power.
The debate over the war powers of the Congress versus the President will continue and in most cases it will be highlighted when a house of Congress is controlled by a political party that does not control the White House. This is what we have just observed.
The strategic question is highlighted by the preemptive attack versus defensive reaction. If the War Powers goal of the House Democrats was to take away the president’s ability to preempt an Iranian attack it is both a strategic mistake and inconsistent with the war powers resolution. This is precisely what the Democrats sought: The resolution “requires the president to consult with Congress in every possible instanced before introducing United States Armed Forces in hostilities.” As a perceived new limitation on the ability of the president to use the military to protect US interests it would be tantamount to strategic surrender to the Iranians by denying the president multiple strategic options. This action thus must surely be nothing more than the Democrats expressing their angst against a successful presidential action.
The debate over war powers will most likely continue and will most likely never been finalized because the extreme answers available are strategic mistakes and such is realized by most clear thinking personnel.