War Powers Resolution

The War Powers Resolution is a federal law intended to check the U.S. president's power to commit the United States to an armed conflict without the consent of the U.S. Congress. The resolution was adopted in the form of a United States congressional joint resolution. It provides that the president can send the U.S. Armed Forces into action abroad only by Congress's "statutory authorization", or in case of "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces".
The bill was introduced by Clement Zablocki, a Democratic congressman representing Wisconsin's 4th district. The bill had bipartisan support and was co-sponsored by a number of U.S. military veterans. 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 congressional authorization for use of military force or a declaration of war by the United States. The resolution was passed by two-thirds each of the House and Senate, overriding the veto of President Richard Nixon.
It has been alleged that the War Powers Resolution has been violated in the past. However, Congress has disapproved all such incidents, and no allegations have resulted in successful legal actions taken against a president.

Constitutional background

Under the United States Constitution, war powers are divided. Under Article I, Section 8, Congress has the power to:

declare war
grant Letters of Marque and Reprisal
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
make Rules concerning Captures on Land and Water
provide for organizing, arming, and disciplining, the Militia; and
govern such Part of as may be employed in the Service of the United States.

Section 8 further provides that the states have the power to:

Appoint the Officers of the Militia; and
train the Militia according to the discipline prescribed by Congress.

Article II, Section 2 provides that:

"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"

It is generally agreed that the commander-in-chief role gives the President power to repel attacks against the United States and makes the President responsible for leading the armed forces. The President has the right to sign or veto congressional acts, such as a declaration of war, and Congress may override any such presidential veto. Additionally, when the president's actions provide "Aid and Comfort" to enemies or levy war against the United States, then Congress has the power to impeach and remove the president for treason. For actions short of treason, they can remove the president for "Bribery, or other high Crimes and Misdemeanors", the definition of which the Supreme Court has left up to Congress. Therefore, the war power was intentionally split between Congress and the Executive to prevent unilateral executive action that is contrary to the wishes of Congress, and require a super-majority for legislative action that is contrary to the wishes of the president. Past presidential administrations have engaged the U.S. in conflict as well as directed U.S. military efforts without the approval of Congress. President Franklin Roosevelt directed the U.S. Navy to protect British shipping vessels during WW2 as well as ordering the occupation of Greenland and Iceland.

History

Background and passage

During the Vietnam War, the United States found itself involved for many years in situations of intense conflict without a declaration of war. Many members of Congress became concerned with the erosion of congressional authority to decide when the United States should become involved in a war or the use of armed forces that might lead to war. It was prompted by news leaking out that President Nixon conducted secret bombings of Cambodia during the Vietnam War without notifying Congress. The War Powers Resolution bill was a contest between Congress and the Presidency on who has specific rights regarding wartime authorities. According to the committee report "The issue concerns the 'twilight zone' of concurrent authority which the Founding Fathers gave the Congress and the President over the war powers of the National Government."
President Nixon's opposition to the bill was noted by Representative Gerald R. Ford, who read aloud a telegram from the President in which Nixon warned he would veto the legislation due to its "dangerous and unconstitutional restrictions". The War Powers Resolution was passed by both the House of Representatives and Senate but was vetoed by President Richard Nixon. By a two-thirds vote in each house, Congress overrode the veto and enacted the joint resolution into law on November 7, 1973.

Provisions

In the absence of a declaration of war by the Congress, in any case in which the Armed Forces of the United States are introduced in hostilities, or in situations where imminent involvement in hostilities is clearly indicated by the circumstances, such use of the Armed Forces of the United States in hostilities pursuant to this Act shall be reported within 48 hours in writing by the President to the Speaker of the House of Representatives and the President pro tempore of the Senate, together with a full account of the circumstances under which such hostilities were initiated, the estimated scope and duration of such hostilities, and the constitutional and legislative authority under which the introduction of hostilities took place.
The President is to routinely consult with Congress until U.S. armed forces are no longer engaged in hostilities or have been removed. Reports are given to the House Committee of Foreign Affairs and to the Senate Foreign Relations Committee.

Implementation, 1993–2002

With the War Powers Resolution's passing, both the deployment of troops to conflict and the stationing of troops past 60 days would now need prior congressional approval. The president would now need to routinely consult with Congress for the duration of the conflict. The resolution is considered to be a critically important bill in reestablishing congressional capabilities. As of 2011, presidents have submitted 130 reports to Congress as a result of the War Powers Resolution.
Congress invoked the War Powers Resolution in the Multinational Force in Lebanon Act, which authorized the Marines to remain in Lebanon for 18 months during 1982 and 1983. In addition, the Authorization for Use of Military Force Against Iraq Resolution of 1991, which authorized United States combat operations against Iraqi forces during the 1991 Gulf War, stated that it constituted specific statutory authorization within the meaning of the War Powers Resolution.
The Reagan Administration harbored extensive reservations about the War Powers Resolution's constitutionality and efficacy. Legal Advisor to the State Department Abraham Sofaer argued that the WPR's deadlines "creates unwise limitations on Presidential authority to deploy U.S. forces in the interests of U.S. national security" and that "the President's constitutional authority cannot in any case even be impermissibly infringed by statute." More specifically, the Administration sought to make clear that the resolution should not be applied to anti-terrorist operations, a use of force, according to Sofaer, "that is more analogous to law enforcement activity by policy in the domestic context than it is to the 'hostilities' between states."
On November 9, 1993, the House used a section of the War Powers Resolution to state that U.S. forces should be withdrawn from Somalia by March 31, 1994; Congress had already taken this action in appropriations legislation. Under President Clinton, war powers were at issue in former Yugoslavia, Bosnia, Kosovo, Iraq, and Haiti, and under President George W. Bush in responding to terrorist attacks against the U.S. after September 11, 2001. "n 1999, President Clinton kept the bombing campaign in Kosovo going for more than two weeks after the 60-day deadline had passed. Even then, however, the Clinton legal team opined that its actions were consistent with the War Powers Resolution because Congress had approved a bill funding the operation, which they argued constituted implicit authorization. That theory was controversial because the War Powers Resolution specifically says that such funding does not constitute authorization." Clinton's actions in Kosovo were challenged by a member of Congress as a violation of the War Powers Resolution in the D.C. Circuit case Campbell v. Clinton, but the court found the issue was a non-justiciable political question. It was also accepted that because Clinton had withdrawn from the region 12 days prior the 90-day required deadline, he had managed to comply with the act.
After the 1991 Gulf War, the use of force to obtain Iraqi compliance with United Nations resolutions, particularly through enforcement of Iraqi no-fly zones, remained a war powers issue. In October 2002 Congress enacted the Authorization for Use of Military Force Against Iraq, which authorized President George W. Bush to use force as necessary to defend the United States against Iraq and enforce relevant United Nations Security Council Resolutions. This was in addition to the Authorization for Use of Military Force of 2001.

Libya, 2011

Secretary of State Hillary Clinton testified to congress in March 2011 that the Obama administration did not need congressional authorization for its military intervention in Libya or for further decisions about it, despite congressional objections from members of both parties that the administration was violating the War Powers Resolution. During that classified briefing, she reportedly indicated that the administration would sidestep the Resolution's provision regarding a 60-day limit on unauthorized military actions. Months later, she stated that, with respect to the military operation in Libya, the United States was still flying a quarter of the sorties, and the New York Times reported that, while many presidents had bypassed other sections of the War Powers Resolution, there was little precedent for exceeding the 60-day statutory limit on unauthorized military actions – a limit which the Justice Department had said in 1980 was constitutional. The State Department publicly took the position in June 2011 that there was no "hostility" in Libya within the meaning of the War Powers Resolution, contrary to legal interpretations in 2011 by the Department of Defense and the Department of Justice Office of Legal Counsel.
May 20, 2011, marked the 60th day of U.S. combat in Libya but the deadline arrived without President Obama seeking specific authorization from the U.S. Congress. President Obama notified Congress that no authorization was needed, since the U.S. leadership had been transferred to NATO, and since U.S. involvement was somewhat "limited". In fact, as of April 28, 2011, the U.S. had conducted 75 percent of all aerial refueling sorties, supplied 70 percent of the operation's intelligence, surveillance, and reconnaissance, and contributed 24 percent of the total aircraft used in the operation. By September, the U.S. had conducted 26 percent of all military sorties, contributing more resources to Operation Unified Protector than any other NATO country. The State Department requested express congressional authorization.
On Friday, June 3, 2011, the U.S. House of Representatives voted to rebuke President Obama for maintaining an American presence in the NATO operations in Libya, which they considered a violation of the War Powers Resolution. Yale Law Professor Bruce Ackerman stated that Obama's position "lacks a solid legal foundation. And by adopting it, the White House has shattered the traditional legal process the executive branch has developed to sustain the rule of law over the past 75 years."