Transcript War Power Authorities: Who’s in Charge?

Carla Pendino
Laura Renz
Jill Rough
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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
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§ 1541. Purpose and Policy
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§ 1542. Consultation
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§ 1543. Reporting Requirement
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§ 1544. Congressional Action
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§ 1545. Congressional Priority procedures for joint
resolution or bill
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§ 1546. Congressional priority procedures for
concurrent resolution
§ 1546a. Expedited procedures for certain joint
resolutions and bills
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§ 1547.
Interpretation of joint resolution
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§ 1548.
Separability
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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
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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.
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Since 1973, Presidents have submitted 115 reports to
Congress as a result of the War Powers Resolution
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Issuance and amendment
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Examples of major uses of War Powers Resolution
◦ Bosnia (NATO)
◦ Somalia (UN)
◦ Post-September 11th
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Peace Powers Act of 1995
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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
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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
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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) – concurring opinion 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.”
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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
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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
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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
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United Nations/NATO
◦ Under what circumstances, if any, is Congressional
authorization required for US participation in
UN/NATO operation?
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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
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Major threat to US credibility
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What are the implications of adhering to withdrawal
mandate of WPR?
Two key elements of withdrawal
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Timeline:
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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
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Forces are withdrawn if Congress fails to take action
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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
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Automatic Withdrawal
◦ Legislative veto is suspect under INS v Chadha
◦ Should require Congressional action
◦ Congressional resolution to withdraw subject to
Presidential veto
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Proposal
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◦ No requirement to withdraw U.S. forces after 60-90
days
◦ Unless Congress passes resolution to do so
Legislative change
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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
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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
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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
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Pros:
 The Executive Branch has historically enjoyed extensive Courtrecognized 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
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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
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Policy proposal:
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Add reporting requirement that would require:
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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
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Add additional provision after Reporting Requirement
Statute, 1543a
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◦ 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
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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?
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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.
http://www.heritage.org/Research/NationalSecurity/hl529.cfm.
Online at
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