The War Powers Resolution of 1973

1. The War Powers Resolution of 1973 Carla Pendino Laura Renz Jill Rough

2. Background • Under Constitution, war powers are divided • President is Commander-in-Chief (i.e., execute war) • Congress has powers to raise and support armed forces, make rules for regulation, and “declare” war • It is widely acknowledged that the President has uninhibited power to repel invasion/attack • History shows tension of war powers • Following Korea/Vietnam, Congress sought to reassert its authority

3. Provisions of the Statute • § 1541. Purpose and Policy • § 1542. Consultation • § 1543. Reporting Requirement • § 1544. Congressional Action • § 1545. Congressional Priority procedures for joint resolution or bill

4. Provisions of the Statute (cont.) • § 1546. Congressional priority procedures for concurrent resolution • § 1546a. Expedited procedures for certain joint resolutions and bills • § 1547. Interpretation of joint resolution • § 1548. Separability

5. Perspectives of Stakeholders • Congress: • Presidential authority is beyond Framer’s intent • Equal branch of government; treat as such • Constitutional authority/obligation to declare war • historically this referred to initiating offensive war • President: • Unconstitutional • Limits ability to conduct diplomacy and foreign affairs • Includes force and THREAT of force • Limits ability to conduct military operations in direct support of national interests (evacuating US citizens from an embassy) • Time limit for withdrawal is impractical/undesirable

6. Unconstitutionalities • Limiting Presidential power as Commander in Chief • Consultation provision forces President to divulge matters of national security to Congress • Reporting requirement is unfeasible, and gives Commander in Chief responsibilities to Congress. • Withdrawal of military after 60-90 day period gives Congress Commander in Chief responsibilities.

7. Legislative History • Since 1973, Presidents have submitted 115 reports to Congress as a result of the War Powers Resolution • Issuance and amendment • Examples of major uses of War Powers Resolution • Bosnia (NATO) • Somalia (UN) • Post-September 11th • Peace Powers Act of 1995

8. Significant Cases The Supreme Court has largely been hesitant to directly deal with the WPR; however it is often relevant in other high profile cases, and the Court has a long history of dealing with cases related to the separation of power between the Legislative and Executive branches of government • No clear conclusion from the cases whether Congress or the Executive holds the upper hand in wartime powers, though the majority of cases defer to Presidential powers “When…the President is given direct power by the Constitution so that he may act without legislation, or if he is given in the Constitution, particular means with which to execute the laws and make his constitutional power effective, Congress cannot prevent exercise of the power…” – William Howard Taft, 1916

9. Significant Cases (cont.) • United States v. Curtiss-Wright Export. Corp. (1936) – issue at hand whether Congress had delegated power to the Executive that it did not have to delegate regarding limitations on exports during wartime • Court found in favor of the government and the broad and exclusive power of the Executive to regulate foreign affairs • Youngstown Sheet & Tube Co. v. Sawyer (1952) – concurringopinion by Justice Robert Jackson set up guidelines for the legitimacy of presidential power vs. congressional power under various circumstances • (1) those cases in which the President was acting with express or implied authority from Congress; (2) cases in which Congress had thus far been silent; and (3) cases in which the President was defying congressional orders • The Gulf of Tonkin Resolution (1964) – legislation which stated that the “United States is, therefore, prepared, as the President determines, to take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom.”

10. Significant Cases (cont.) I.N.S. v. Chadha (1983) case which struck down the legislative veto section of the Immigration and Nationality Act. This decision cast similar doubt on Section 5 (c) of the WPR Campbell v. Clinton (1999) 26 Members of Congress filed suit against President Bill Clinton alleging that the United States participation in an air offensive launched by the NATO against the Federal Republic of Yugoslavia violated the WPR. Court found the for the Executive

11. Problems in Practice • Presidential Noncompliance • Every President since Nixon has taken the stance that the WPR is unconstitutional • Presidents use a number of options in committing troops that do not fall under the WPR • Police action, UN action, etc. “I don’t think a President of the United States should be tied down by a commitment which will not allow him to take the action that needs to be taken to defend American interests and to defend American lives where there is no time to consult.” – President Richard Nixon, 6/19/69 White House Press Conference

12. Problems in Practice • The statute lacks enforceability unless it falls under specific standards, which Presidents have made sure to avoid in the past • Hostilities • Unless it falls under specific standards, Presidents have avoided compliance with WPR • “Consistent with” vs. “pursuant to” • President Reagan’s commitment of troops to Lebanon in 1982 for “peacekeeping purposes” • Congress has the option of invoking Section 4(a)(1) of the WPR and triggering a durational limit for the action unless they specifically authorize the forces to remain • However, neither Congress nor the President govern in a social vacuum, and the national climate surrounding potential international hostilities is a significant influence on this political process

13. Problems in Practice • United Nations/NATO • Under what circumstances, if any, is Congressional authorization required for US participation in UN/NATO operation? • Lack of Clarity • What constitutes “consultation”? • Notification vs. consultation • What if consultation is not possible or advisable? • Security leaks, raids, diplomacy • What constitutes “hostilities”? • Military exercises and training • What constitutes “imminent hostilities”? • Iraq, preemption, and preventative war

14. Issue: Withdrawal Mandate • Major threat to US credibility • What are the implications of adhering to withdrawal mandate of WPR? • Two key elements of withdrawal • Timeline: • Termination of hostilities required within 60 calendar days from submission of report or requirement for submission of report (can be extended 30 days by Congress) • Automatic • Forces are withdrawn if Congress fails to take action

15. Pros/Cons: Withdrawal Mandate • Time limit • President has 60-90 days to “do as he choses” • Too much opportunity for “mischief or irreversible action.” • Maintain the intent of WPR/ the “teeth” • Unrealistic • Enemy forces can “wait out” 60 days • Automatic Withdrawal • Legislative veto is suspect under INS v Chadha • Should require Congressional action • Congressional resolution to withdraw subject to Presidential veto

16. Policy Proposals • Proposal • No requirement to withdraw U.S. forces after 60-90 days • Unless Congress passes resolution to do so • Legislative change • Repeal automatic withdrawal requirement after 60 days (section 5b) • This leaves language intact which states that forces must be withdraw if Congress passes a resolution for such action

17. Potential Implications Wide Presidential authority Removes teeth of WPR “Influence” remains through concurrent resolution language Forces Congressional action Potential for increased communication if Congress leans towards authorizing use of force Threat of veto still exists Congress and President must consider citizen reaction

18. Issue: Presidential Authority without consequences • Presidential authority over use of military force can lead to protracted, expensive military commitments • Congress is forced to budget for military use that it does not control • Additionally, Congress is often not privy to discussions of strategy or long term goals

19. Pros/Cons: Presidential Authority without consequences • Pros: • The Executive Branch has historically enjoyed extensive Court-recognized authority over military affairs as the Commander in Chief, despite Congressional opposition • As a result, the President has ability to delegate budgetary responsibilities while preserving control over military operations • Cons: • De-facto unlimited authority of President • Congress is left with political pressure from constituents • Members of Congress may have to support funding for a war / conflict to which they may have opposed

20. Policy Proposals • Policy proposal: • Add reporting requirement that would require: • Submission of report within 4 weeks of introduction to Congress detailing budget estimates • Outline of intended length of commitment • Report to consult DOD and OMB • Legislative change • Add additional provision after Reporting Requirement Statute, 1543a

21. Potential Implications • New report sets preliminary guidelines for funding of wartime / hostility efforts • Increased cooperation between President, Executive agencies, and Congress • President may be less likely to utilize military for formal war or hostile situations • Guidelines may not fully account for unexpected occurrences during wartime or changes in strategy • Information detailed in reports may be leaked by members of Congress, and harm overall effort

22. Questions for Consideration • How should war powers be divided in a democracy? • Who has the final word on use of military force? • How does politics affect one’s perspective of WPR? • Would you support more or less Executive power to use military force given the current administration? • Would you support more or less stringent requirements given the current Congress?

23. Sources • War Powers Resolution of 1973 (50 USC 33) • Jennifer K. Elsea and Richard F. Grimmett, “Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications,” CRS Report RL31133, March 8, 2007. • Richard Grimmett, “War Powers Resolution: Presidential Compliance,” CRS Report RL33532, June 12, 2007. • ---, “The War Powers Resolution: After Thirty Years,” CRS Report RL32267, March 11,2004. • D.H.H., “The War Powers Resolution: A Tool for Balancing Power Through Negotiation” Virginia Law Review, Vol 70, No. 5 (Jun., 1984), pp. 1037-1058 • President Richard Nixon, White House Press Conference, June 19, 1969, online at http://www.state.gov/documents/organization/77859.pdf • David Akerman, “Response to Terrorism: Legal Aspects of the Use of Military Force,” CRS Report RS21009, September 13, 2001. • James Madison and Alexander Hamilton, Federalist Papers (No 41 and 69) • John Norton Moore and Robert F Turner, National Security Law, Second Edition, (Durham: CA Academic Press, 2005). • Jenner, Albert E. “Fixing the War Powers Act.” May 22, 1995. The Heritage Foundation. Online at http://www.heritage.org/Research/NationalSecurity/hl529.cfm.

24. Questions or Comments?