The power to declare... Surge!

It's worth reviewing the War Powers Resolution as we approach a showdown over the "Surge".

War Powers Resolution
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The War Powers Act of 1973 (Public Law 93-148) limits the power of the President of the United States to wage war without the approval of Congress. The War Powers Act of 1973 is also referred to as the War Powers Resolution (Sec. 1).Contents
1 Provisions
2 History
3 Basis of Legality
4 See also
5 References
6 External links


Provisions

The purpose of the War Powers Resolution is to ensure that Congress and the President share in making decisions that may get the U.S. involved in hostilities. Portions of the War Powers Resolution require the President to consult with Congress prior to the start of any hostilities as well as regularly until U.S. armed forces are no longer engaged in hostilities (Sec. 3); and to remove U.S. armed forces from hostilities if Congress has not declared war or passed a resolution authorizing the use of force within 60 days (Sec. 5(b)). Following an official request by the President to Congress, the time limit can be extended by an additional 30 days (presumably when "unavoidable military necessity" requires additional action for a safe withdrawal).

History

Under the Constitution, war powers are divided. Congress has the power to declare war and raise and support the armed forces (Article I, Section 8), while the president is Commander in Chief (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 him responsible for leading the armed forces. 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 Senate and the House of Representatives achieved the 2/3 majority required to pass this joint resolution over President Nixon's veto on November 7, 1973. Presidents have submitted 118 reports to Congress as a result of the War Powers Resolution, although only one (the Mayaguez situation) cited Section 4(a)(1) or specifically stated that forces had been introduced into hostilities or imminent danger.

Congress invoked the War Powers Resolution in the Multinational Force in Lebanon Resolution (P.L. 98-119), which authorized the Marines to remain in Lebanon for 18 months. In addition, P.L. 102-1, authorizing the use of U.S. armed forces concerning the Iraqi aggression against Kuwait, 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, war powers have been at issue in former Yugoslavia/Bosnia/Kosovo, Iraq, Haiti, and in responding to terrorist attacks against the U.S. after September 11, 2001. After combat operations against Iraqi forces ended on February 28, 1991, the use of force to obtain Iraqi compliance with U.N. resolutions remained a War Powers issue, until the enactment of P.L. 107-243, in October 2002, which explicitly authorized the President to use force against Iraq, an authority he exercised in March 2003, and continues to exercise for military operations in Iraq.

Basis of Legality

There remain underlying questions about its constitutionality (though not a formal declaration of war) consistent with the provisions of the resolution. The reports to Congress required of the President have been drafted 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 — Philip Bobbitt's in "War Powers: An Essay on John Hart Ely's War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath," Michigan Law Quarterly 92, no. 6 (May 1994): 1364–1400 — runs as follows: "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"; 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, the nephew of Lyndon Johnson, also argues that "A democracy cannot… tolerate secret policies" because they undermine the legitimacy of governmental action.)

A second constitutionality argument concerns a possible breach of the 'separation of powers' doctrine. The legislature may be impeding the executive in carrying-out the Oath of Office. "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability; preserve, protect, and defend the Constitution of the United States." (US Constitution, Article 2, Section 1, Clause 8) This type of constitutional controversy is similar to one that occurred under President Andrew Johnson with the Tenure of Office Act (1867). In that instance, the Legislative branch attempted to control the removal of Executive branch officers.

On December 20th, 2005, ABC News reported that vice-president Dick Cheney had described the War Powers Resolution as an "infringement on the authority of the president." [1] (http://abcnews.go.com/Politics/wireStory?id=1424802&page=1)

See also
War Powers Clause (of the Constitution)

References

Richard F. Grimmett "War Powers Resolution: Presidential Compliance" Congressional Research Service Report. Updated February 14, 2006

External links
http://www.yale.edu/lawweb/avalon/warpower.htm
Congressional Research Service (CRS) Reports regarding the War Powers Resolution (http://digital.library.unt.edu/govdocs/crs/search.tkl?q=war+powers+resolution&search_crit=title&search=Search&date1=Anytime&date2=Anytime&type=form)
http://www.cs.indiana.edu/statecraft/warpow.html
http://www.au.af.mil/au/awc/awcgate/crs/rl32267.htm

Category: United States federal defense and national security legislation
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