The War Powers Resolution

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The War Powers Resolution

• ITRN 701-007
• Erik Smidt
• Elizabeth Fiorentino

2
Summary

• History
• Overview
• Requirements
• Conflicts and Cases
• Issues
• Proposal
• Implications

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History

• Divided War Powers
• Korea
• Vietnam
• Post Watergate/Gulf of Tonkin Resolution
• Vetoed by Nixon- overridden by Congress

4
Overview

• Formalized role of Congress when initiating armed
  conflict
• To Provide Congress with mechanism to halt
  conflict and override the President
• Congressional authorization required before
  Troops can be deployed into a war zone
• Can be waived in case of imminent attack or
  serious threat
• Repeated Constitutionality Questions

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Requirements

• President must notify Congress within 48 hours of
  committing troops to hostilities or imminent
  danger.
• Troops can not be deployed more then 60 days
  without authorization or declaration of war. 30
  days granted to carry out withdrawal.
• President must report to Congress on the status
  of hostilities no less then once every 6 months.
• Congress must respond within 36 days with a
  resolution of approval or disapproval.

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Requirements (cont)

• If Congress is physically unable to meet the 60
  day period may be postponed for not more then 30
  more days.
• If the Houses of Congress disagree a conference
  committee for 48 hours

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Conflicts

• Former Yugoslavia/Bosnia
• NATO operation supported airlift and no-fly zone
• w/o Congressional war resolution
• Congress did urge (HR554) the UN Security
  Council to ensure humanitarian relief
• Kosovo
• Congress brought suit against the President in
  Federal District Court for violating WPR
• Senate non-binding resolution supporting
  operations
• Iraq (1994)
• Oct 3rd two Iraqi Divisions deployed to Kuwaiti
  border
• Oct 8th 30,000 troops and planes sent to Kuwait
  to counter
• Oct 28th Iraqi forces withdrawal, Nov 7 US turns
  troops around
• Congress recessed Oct 8 Nov 29 Never voted

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Conflicts (cont)

• Haiti
• Pres. Submitted a report consistent with the
  WPR would welcome the support of Congress but
  was (not) mandated to obtain it.
• Ordered Navy to enforce UN. Embargo
• Sept. 19th US and allied Peace Keepers enter
  Haiti
• Sept 18th Cedras Aristide agree to step down
• Oct. 7th Congress approves but complains
• Somalia
• Issues Mission Creep and expansion beyond
  authorization
• United Nations Actions
• UN provides authorization under international law
• Some cases sufficient for US law (HQ and command
  ops)
• Troops levels agreement prior to UN Resolution
  do not need new Congressional authorization has
  not been used in proactive

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Cases INS v Chadha

• Congress vetoed INS suspension of deportation
  proceedings went to Court of Appeals
• 9th Circuit Court of Appeals invalidated
• Congress may not grant itself a legislative veto
  over actions of the executive branch in conflict
  with the Presentment Clause (bicameral principle)
  of the United States Constitution.
• Both houses need to vote to approve measure via
  the Presentment Clause when revoking power
  given to Executive Branch

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Cases Campbell v Clinton

• Campbell and 17 Reps filed a lawsuit in FDC
• Clinton accused of not reporting to Congress
  within 48 hours and
• Did not obtain declaration of war prior to
  hostilities House had voted 427 to 2 against
  declaration of war
• DISMISSED
• Congress had voted for funding after action in
  Kosovo had been actively engaged tacit approval
• Legislators had sent confusing signals Jackson
  2
• Campbell should not be forced to cut troop
  funding to register complaint

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Consultation

• Intent of WPR was for consultation
• Plenty of reporting but little to no
  consultation Presidents have met with Congress
  after deployment but before commencement
• No clear mechanism for the President and Congress
  to consulting after hostilities commence
• Who represents Congress?
• When to invoke Section 4(a)(1) time limit?
• Resolution may help or may limit flexibility

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Problem Constitutionality

• 1973 - 2009 All President have refused to
  recognize the authority of Resolution
• Reports Submitted 118 (as of 2006)
• Ford 4
• Carter 1
• Reagan 14
• Bush (HW) 7
• Clinton 60
• Bush (W) 36

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Constitutionality

• Congress Article 1 Section 8
• To declare War, grant Letters of Marque and
  Reprisal, and make Rules concerning Captures on
  Land and Water
• President Article 1, Section 2
• The 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

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Issues

• Who has the power to declare war?
• Do we revise the War Powers Act?
• How do you merge the two schools of thought on
  who declares a war?

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Two Schools of Thought

• Congressional School
• Executive School

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Arguments for the War Powers Act

• Allows the President to Act without needing the
  advice and consent of Congress
• Congress can end hostilities by using the power
  of the purse
• If Congress fails to act hostilities end in 60 to
  90 days

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Arguments Against the War Powers Act

• Constitutional Problems
• Contains only vague consultation requirements
• No work around if one house disapproves
• Presidents do not file documents to trigger the
  60 or 90 day clock

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Policy Proposal

• War Powers Consultation Act

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War Powers Consultation Act

• Consultation before declaration or authorization
  of war
• Congress must hold a vote 30 days
• Joint Congressional Committee will be established

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Joint Congressional Committee

• The Speaker of the U.S. House of Representatives
  and the Majority Leader of the Senate
• The Minority Leaders of the House of
  Representatives and the Senate
• The Chairman and Ranking Minority Members of each
  of the following Committees of the House of
  Representatives
• The Committee on Foreign Affairs,
• The Committee on Armed Services,
• The Permanent Select Committee on Intelligence,
  and
• The Committee on Appropriations.
• The Chairman and Ranking Minority Members of each
  of the following Committees of the Senate
• The Committee on Foreign Relations,
• The Committee on Armed Services,
• The Select Committee on Intelligence, and
• The Committee on Appropriations.

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Implications

• There will need to be consultation
• Congress can have a joint resolution of
  disapproval on an armed conflict
• President will need Congressional approval before
  even thinking about an armed conflict

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Further Reading

• National War Powers Commission Report
• Co-Chairs James A. Baker III and Warren
  Christopher.
• Miller Center of Public Affairs, University of
  Virginia, 2009
• War Powers Resolution Presidential Compliance
  November 2004
• CRS Issues Brief for Congress. Congressional
  Research Service, Library of Congress.
• "Judge sides with Clinton" June 9, 1999
• U.S. House of Representatives homepage
  http//www.house.gov/paul/press/press99/pr060999.h
  tm