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War Powers Resolution (1973)

The Effort to Curb Executive War Actions

Concerned that its role in making decisions to send military forces into combat had atrophied, Congress attempted to reassert itself in 1973 with the passage of the War Powers Resolution. The statute sought to curb presidential war making and to require the “collective judgment” of the President and Congress before the U.S. troops could be committed to hostilities. The resolution was passed within the immediate context of the white-hot debate surrounding American involvement in the Viet Nam War, but it can also be set within the larger context of legislative efforts to recapture the war power, which had been usurped by Presidents since Harry S. Truman’s unilateral entry into the Korean War.

        President Richard M. Nixon vetoed the War Powers Resolution.  In his veto message, he stated that it was unwise, impractical and dangerous to legislate the procedure by which the President and Congress would share the war power.  Moreover, he argue that the measure infringed on the President’s constitutional power as Commander in Chief. Nixon informed Congress the “only way in which the constitutional powers of a branch of the Government can be altered is by amending the Constitution—and any attempt to make such alterations by legislation alone is clearly without force.”  But both houses of Congress summoned the requisite two-thirds majority to override the veto:  the House by a narrow vote of 284 to135 and the Senate by the wider margin of 75 to 18. The resolution thus became law on November 7, 1973.

Procedures Governing the Deployment of U.S. Forces

          The War Powers Resolution consists of three main procedures to govern the deployment of U.S. military force abroad:  presidential consultation with Congress, presidential reports to Congress, and congressional termination of military action. The purpose of the resolution, according to section 2(a), is “to insure that the collective judgment” of the President and Congress will apply to both the introduction of American troops into hostilities and the length of their involvement.  Under section 3 of the resolution, the President is required “in every possible instance” to consult with Congress before he introduces troops into “hostilities” or into “situations where imminent involvement in hostilities is clearly indicated by the circumstances.” This provision obviously vests the President with discretion to determine, at a minimum, whether consultation is “possible” and, perhaps somewhat more generously, whether it is desirable.  Apparently, it also permits the President to determine when, how, and even whom to consult. Debate has arisen about the very meaning of “consultation.” Presidents have tended to treat it as a synonym for notification, while Congress has viewed it as a joint deliberation on a pending issue or problem.

     It has been contended that that the statute does not require the President to consult with all members of Congress, but this claim raises a serious constitutional issue.  The War Clause of the Constitution (Article I, Section 8) requires a majority vote of both houses of Congress to authorize the initiation of hostilities against a foreign nation.  It follows, therefore, that no smaller contingent in Congress may lay claim to the war power. And section 3 of the resolution contains a greater, more fundamental, constitutional flaw.  Since the provision empowers the President to introduce troops into combat without prior congressional authorization, it not only repudiates the resolution’s stated aim of ensuring the “collective judgment” of both branches but also grants the President more power than he derives from the Constitution.  The delegation doctrine prohibits Congress from delegating, sharing or transferring its constitutional powers to the President.  Thus, Congress may not delegate to the executive its law making or appropriations powers; nor may it delegate its sole and exclusive authority to decide for war.  The Constitution vests no power to initiate war in the President. Moreover, in his capacity as Commander in Chief, he is only permitted to repel sudden attacks against the United States and to command military forces once war has  been authorized by Congress.

        The grant of authority to the President to introduce troops into hostilities also contradicts section 8(d) of the resolution, which states that the resolution is not intended to alter the constitutional authority of the President or Congress or to grant any authority to the President that “he would not have had in the absence” of the statute.  Any attempt to vest the war power in the President, properly undertaken, would require a constitutional amendment since it involves a fundamental transfer of power from the legislature to the executive. 

Restraints on Presidential War Powers

        Section 4 of the resolution imposes on the President important reporting requirements, which establish the foundation of congressional control over war making. When the President introduces forces into hostilities or into situations in which hostilities are imminent, he is required to submit a report to Congress within forty-eight hours. The submission of the report triggers the mechanisms of congressional control, but these are thwarted if the report is delayed. Section 5(b) provides that after a report “is submitted or is required to be submitted,” the President  must terminate the use of U.S. forces after sixty days unless Congress has declared war, authorized the action, or is physically unable to convene as a result of an attack on the United States. The President may extend the sixty-day period for an additional thirty days if he certifies that it is necessary to protect American forces and remove them from conflict.  Section 5 vests in Congress two mechanisms for controlling the involvement of U.S. forces in hostilities: Congress can decide to withhold authorization of presidential action during the sixty-to-ninety day period or it can pass a concurrent resolution at any time to order the President to remove forces involved in hostilities.

Frustrating Congressional Limitations on the War Power

      The instruments of congressional control may be frustrated, however, since the sixty-to-ninety day clock does not begin to run until the President submits a report to Congress under section 4(a)(1). The clock has been triggered on only two occasions. In 1975, President Gerald Ford reported to Congress after the Mayaguez had been captured, but the issue of the time limit was moot because the military operation had been completed by the time the report was filed.  In the second instance, Congress itself started the clock in October 1983 with the passage of the Lebanon Resolution, which reflected its frustration with Ronald Reagan’s unwillingness to file a report under section 4(a)(1) after Marines he had sent to Lebanon became targets of hostile fire in August 1983. That measure permitted President Reagan ti keep forces in Lebanon for a period of eighteen months, but he removed most of the troops in February 1984.

        The resolution’s most immediate and powerful congressional mechanism to control war making—the passage of a concurrent resolution to order the removal of troops engaged in hostilities—was gutted by the Supreme Court’s decision in INS v. Chadha (1983), which held the legislative veto unconstitutional. Although the case involved the use of a one-house legislative veto, the decision cast doubt on the legality of any legislative veto that was not presented to the President for his signature.