War Powers Act

The War Powers Act, also referred to as the “War Powers Resolution,” or the “War Powers Resolution of 1973,” is a federal law that governs the president’s power to bring the U.S. into an armed conflict without first obtaining authorization from Congress. The President can make the executive decision to engage the military without Congress’ consent in situations authorized by the statute. He can also take action without prior consent in the case of a national emergency that results from an attack upon the U.S. To explore this concept, consider the following War Powers Act definition.

Definition of War Powers Act

Noun

1. A federal law limiting the president’s power to deploying armed forces for the purposes of war.

Origin

1973    Congressional legislation

History of the War Powers Act

During the Korean and Vietnam wars it became apparent that the U.S. needed something akin to the War Powers Act. The U.S. kept finding itself involved in hostile situations by unilateral action of the president, without an official declaration of war having even been made.

Members of Congress became concerned that congressional authority was becoming less important insofar as deciding when the U.S. would get involved in a war or use armed forces in a situation that had a high possibility of leading to war. This fear was only made worse when news leaked that President Nixon did not notify Congress before carrying out secret bombings on Cambodia during the Vietnam War.

The House of Representatives and the Senate jointly passed the War Powers Act in 1973. President Nixon vetoed it, but his veto was overridden by Congress, and the War Powers Act was passed later that year. Presidents have submitted 130 reports to Congress since the implementation of the War Powers Act.

Throughout the years, there have been several notable instances wherein the War Powers Act has played a role. For example, the War Powers Act was referenced on November 9, 1993, when the House used it to support its statement that the U.S. should withdraw its troops from Somalia by March 31, 1994.

Sections of the War Powers Act

Altogether, there are five sections of the War Powers Act. The first section details the policy that supports the law – specifically, that the President and Congress will work together when sending troops into war. The first of the five sections of the War Powers Act also provides that the President’s powers are exercised only after Congress has officially declared war, or has given the President statutory authorization, or in the event of a national emergency in the face of an attack on the United States.

The second section requires that the President check with Congress before sending the military into a hostile situation, or into a situation that may quickly become hostile. The President is to continue checking in with Congress for as long as U.S. troops remain in this situation. The third section lists the reporting requirements with which the President must comply any time he feels it is necessary to send U.S. armed forces into existing or soon-to-be hostile situations.

The fourth section moves away from the President’s duties and focuses on those of Congress. This section is important because it concerns a potential 60-day expiration date on the use of the U.S.’ armed forces. Specifically, forces are to be removed from hostile situations within 60 days of a report being submitted, unless Congress takes action to authorize a continued military presence, or is unable to meet in person due to an attack upon the U.S. This section also requires the President to remove U.S. military forces engaged in a hostile situation without a declaration of war or a specific statutory authorization at any time if Congress directs him to do so.

The fifth section of the law puts forth those definitions and rules that are to be referred to when interpreting the law itself. Finally, the sixth of the sections of the War Powers Act is what is called a “separability provision.” For example, the War Powers Act, if a court holds any part of it to be invalid, shall be protected from being considered invalid as a whole. This is to prevent the law from being thrown out in its entirety simply because one section has proven to be a failure.

Controversy Over the War Powers Act

Ever since it was passed, there has been controversy over the War Powers Act. The constitutionality of the law has been challenged due to the fact that the Constitution already limits the President’s authority to use force without Congress having made an official declaration of war. As a result, Presidents have drafted reports to Congress that indicate they are acting in a way that is “consistent with” the War Powers Act, rather than “pursuant to” the law, so as to support the presidential position that the law is unconstitutional.

Another argument that has contributed to the controversy over the War Powers Act is that there exists a potential breach of the “separation of powers” doctrine, and that the Act alters the balance between the legislative and executive branches of government. Here, the issue is whether the Act’s requirements for Congress’ approval and the president’s reporting to Congress change the constitutional balance between the branches. Specifically, the concern is that Congress is no longer solely in charge of whether war can be declared, nor is it the only power in charge of the country’s land and naval forces and related funding.

Another contributor to the controversy over the War Powers Act involves an unresolved legal question – specifically, whether a clause within the Act involves an inappropriate legislative veto. This question came up in a case from 1983: INS v. Chadha. In this case, which concerned the deportation of an alien who had continued residing in the U.S. for at least seven years, Justice Byron White dissented from the majority opinion, which was that the Immigration and Nationality Act of 1965 had violated the separation of powers doctrine.

In his dissent, Justice White argued that one of the sections of the War Powers Act would, in light of the decision made in Chadha, be a violation of the Presentment Clause. The Presentment Clause is the section of the Constitution that details the federal legislative procedure, which determines how bills that begin in Congress ultimately become federal law. Justice White does not, however, evaluate whether this section would fall within Congress’ authority, and that is why the answer to this legal question remains unresolved.

War Powers Act Example Involving President Reagan

An example of the War Powers Act involves President Reagan and his dealings with El Salvador. In May of 1981, about 30 members of Congress filed a lawsuit against President Ronald Reagan regarding the U.S.’ military intervention that had taken place in El Salvador. The lawsuit consisted of multiple claims. The first was that President Reagan had violated the War Powers Act because he had failed to comply with the Act’s reporting requirements, and did not have Congressional approval before assigning 55 advisers to the hostile situation in El Salvador.

The second claim concerned the Foreign Assistance Act of 1961 and the International Security and Development Cooperation Act of 1981. These acts work to prohibit the U.S. from providing military or economic aid to countries that are known for consistently committing gross human rights violations. Under these acts, the President was required to regularly check in on El Salvador and confirm that the country was making an effort to comply with human rights. The Plaintiffs in this case claimed that President Reagan’s certifications were unsupported by the existing evidence.

This case came before the federal district court in Washington, D.C. The Court dismissed the case outright without ruling on the merits of the plaintiffs’ arguments, finding that the dispute here was really with members of Congress, not the President. When the case was appealed, over 100 religious, peace, labor, and human rights groups joined in on the appeal. Briefs were filed on behalf of such organizations as the International Human Rights Law Group, the National Council of Churches, and the Border Association for Refugees from Central America, among others.

The U.S. Court of Appeals for the District of Columbia Circuit affirmed the lower court’s decision, and for the same reason. Plaintiffs then filed for a writ of certiorari to the Supreme Court of the United States, however they were denied in June of 1984. The fact that the Supreme Court refused to hear the case served to enforce the decision of the district court, which held that, under the right circumstances, a court could interfere with a presidential war that violated the War Powers Act.

Related Legal Terms and Issues

• Executive Branch – The branch of government that concerns the President and his ability to enforce laws.
• Immigration and Nationality Act of 1965 – Also known as the Hart–Celler Act. This Act changed the way quotas were assigned by ending the National Origins Formula, which had been in place since the Emergency Quota Act of 1921.
• Legislative Branch – The branch of government that concerns Congress and its ability to make laws.
• Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
• Separation of Powers – The act of entrusting the legislative, executive, and judicial powers of government as separate bodies.
• Writ of Certiorari – An order issued by a higher court demanding a lower court forward all records of a specific case for review.