War Powers Resolution

The War Powers Resolution of 1973 (50 U.S.C. 1541-1548) is a federal law intended to check the president's power to commit the United States to an armed conflict without the consent of Congress. The resolution was adopted in the form of a United States Congress joint resolution; this provides that the President can send U.S. armed forces into action abroad only by declaration of war by Congress, "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 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 an authorization of the use of military force or a declaration of war. The resolution was passed by two-thirds of Congress, overriding a presidential veto. It has been alleged that the War Powers Resolution has been violated in the past, for example, by President Clinton in 1999, during the bombing campaign in Kosovo. All incidents have had congressional disapproval, but none have had any successful legal actions taken against the president for alleged violations.

History
Under the United States Constitution, war powers are divided. Congress has the power to declare war, raise and support the armed forces, control the war funding (Article I, Section 8), and has "Power … to make all Laws which shall be necessary and proper for carrying into Execution … all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof", while the President is commander-in-chief of the military, and the militia (i.e. the National Guard) "when called into the actual Service of the United States" (Article II, Section 2). 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. In addition and as with all acts of the Congress, the President has the right to sign or veto congressional acts, such as a declaration of war.

During the Korean and Vietnam wars, 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. The credibility gap widened when news leaked out that President Nixon conducted secret bombings of Cambodia during the Vietnam War. He did not tell Congress about his military plan. The resolution was created because Congress felt that the president had too much power. 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.

Presidents have submitted 130 reports to Congress as a result of the War Powers Resolution, although only one (the Mayagüez incident) cited Section 4(a)(1) and specifically stated that forces had been introduced into hostilities or imminent danger.

Congress invoked the War Powers Resolution in the Multinational Force in Lebanon Act (P.L. 98-119), 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.

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. More recently 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. "[I]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.

May 20, 2011, marked the 60th day of US combat in Libya (as part of the UN resolution) but the deadline arrived without President Obama seeking specific authorization from the US Congress. President Obama, however, notified Congress that no authorization was needed, since the US leadership was transferred to NATO, and since US involvement is somewhat limited. On Friday, June 3, 2011, the US 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.

Questions regarding constitutionality
The War Powers Resolution has been controversial since it was passed. In passing the resolution, Congress specifically cites the Necessary and Proper Clause for its authority. Under the Necessary and Proper Clause, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.

Because the Constitution limits the President's authority in the use of force without a declaration of war by Congress, there is controversy as to whether the provisions of the resolution are consistent with the Constitution. Presidents have therefore drafted reports to Congress required of the President to state that they are "consistent with" the War Powers Resolution rather than "pursuant to" so as to take into account the presidential position that the resolution is unconstitutional.

One argument for the unconstitutionality of the War Powers Resolution by Philip Bobbitt argues "The power to make war is not an enumerated power" and the notion that to "declare" war is to "commence" war is a "contemporary textual preconception". Bobbitt contends that the Framers of the Constitution believed that statutory authorization was the route by which the United States would be committed to war, and that 'declaration' was meant for only total wars, as shown by the history of the Quasi-War with France (1798–1800). In general, constitutional powers are not so much separated as "linked and sequenced"; Congress's control over the armed forces is "structured" by appropriation, while the President commands; thus the act of declaring war should not be fetishized. Bobbitt also argues that "A democracy cannot ... tolerate secret policies" because they undermine the legitimacy of governmental action.

A second argument concerns a possible breach of the 'separation of powers' doctrine, and whether the resolution changes the balance between the Legislative and Executive functions. This type of constitutional controversy is similar to one that occurred under President Andrew Johnson with the Tenure of Office Act (1867). In that prior instance, the Congress passed a law (over the veto of the then-President) that required the President to secure Congressional approval for the removal of Cabinet members and other executive branch officers. The Act was not declared unconstitutional by the Supreme Court of the United States until 1926. When Andrew Johnson violated the Act, the House of Representatives impeached him; action in the Senate to remove him failed by one vote.

Here, the separation of powers issue is whether the War Powers Resolution requirements for Congressional approval and presidential reporting to Congress change the constitutional balance established in Articles I and II, namely that Congress is explicitly granted the sole authority to "declare war", "make Rules for the Government and Regulation of the land and naval Forces" (Article 1, Section 8), and to control the funding of those same forces, while the Executive has inherent authority as Commander in Chief. This argument does not address the other reporting requirements imposed on other executive officials and agencies by other statutes, nor does it address the provisions of Article I, Section 8 that explicitly gives Congress the authority to "make Rules for the Government and Regulation of the land and naval Forces".

The constitution specifically states that Congress is authorized "to provide and maintain a Navy" (Article 1 Section 8). The idea of "maintenance" of a Navy implies that Naval Forces would be a permanent fixture of national defense. Two types of Land Forces are described by the Constitution (Article 1 Section 8): the Militia (armed citizenry organized into local defense forces and state volunteer regiments) which Congress can "call forth" and prescribe the "organizing, arming, and disciplining [training]" of, as Congress did in the Militia acts of 1792; and the Army, which Congress can "raise and support", through regular appropriation acts limited to no more than two years. This division matches how the Revolutionary War was fought, by the Continental Army, raised and supported by the Continental Congress, and local Militias and Volunteer Regiments, raised by the separate Colonies. After the war, under the Articles of Confederation, a small standing Army, the First American Regiment was raised and gradually increased in size over time by Congress before, following the Constitution's ratification, being transformed into the Regular Army. The availability of a standing Army, and the President of the United States being authorized as "Commander in Chief", implies his ability as a military commander to employ forces necessary to fulfill his oath to defend the constitution.

There is also an unresolved legal question, discussed by Justice White in INS v. Chadha of whether a "key provision of the War Powers Resolution", namely 50 U.S.C. 1544(c), constitutes an improper legislative veto. (See Chadha, 462 U.S. 919, 971.) That section 1544(c) states "such forces shall be removed by the President if the Congress so directs by concurrent resolution". Justice White argues in his dissent in Chadha that, under the Chadha ruling, 1544(c) would be a violation of the Presentment Clause. The majority in Chadha does not resolve the issue. Justice White does not address or evaluate in his dissent whether that section would fall within the inherent Congressional authority under Article I Section 8 to "make Rules for the Government and Regulation of the land and naval Forces".