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The War Powers Resolution. ITRN 701-007 Erik Smidt Elizabeth Fiorentino. Summary. History Overview Requirements Conflicts and Cases Issues Proposal Implications. History. Divided War Powers Korea Vietnam Post Watergate/Gulf of Tonkin Resolution

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the war powers resolution

The War Powers Resolution

ITRN 701-007

Erik Smidt

Elizabeth Fiorentino

  • History
  • Overview
  • Requirements
  • Conflicts and Cases
  • Issues
  • Proposal
  • Implications
  • Divided War Powers
  • Korea
  • Vietnam
  • Post Watergate/Gulf of Tonkin Resolution
  • Vetoed by Nixon- overridden by Congress
  • Formalized role of Congress when initiating armed conflict
  • To Provide Congress with mechanism to halt conflict and override the President
  • Congressional authorization required before Troops can be deployed into a war zone
    • Can be waived in case of imminent attack or serious threat
  • Repeated Constitutionality Questions
  • President must notify Congress within 48 hours of committing troops to hostilities or imminent danger.
  • Troops can not be deployed more then 60 days without authorization or declaration of war. 30 days granted to carry out withdrawal.
  • President must report to Congress on the status of hostilities no less then once every 6 months.
  • Congress must respond within 36 days with a resolution of approval or disapproval.
requirements cont
Requirements (cont)
  • If Congress is physically unable to meet the 60 day period may be postponed for not more then 30 more days.
  • If the Houses of Congress disagree a conference committee for 48 hours
  • Former Yugoslavia/Bosnia:
    • NATO operation supported airlift and no-fly zone
    • w/o Congressional war resolution
    • Congress did urge (HR#554) the UN Security Council to ensure humanitarian relief
  • Kosovo:
    • Congress: brought suit against the President in Federal District Court for violating WPR
    • Senate: non-binding resolution supporting operations
  • Iraq (1994):
    • Oct 3rd: two Iraqi Divisions deployed to Kuwaiti border
    • Oct 8th: 30,000 troops and planes sent to Kuwait to counter
    • Oct 28th Iraqi forces withdrawal, Nov 7 US turns troops around
    • Congress recessed Oct 8 – Nov 29: Never voted
conflicts cont
Conflicts (cont)
  • Haiti:
    • Pres. Submitted a report “consistent with the WPR…” “would welcome the support of Congress but… was (not) mandated to obtain it.”
    • Ordered Navy to enforce UN. Embargo
    • Sept. 19th: US and allied Peace Keepers enter Haiti
    • Sept 18th: Cedras & Aristide agree to step down
    • Oct. 7th: Congress approves but complains
  • Somalia:
    • Issues: Mission Creep and expansion beyond authorization
  • United Nations Actions:
    • UN provides authorization under international law
    • Some cases sufficient for US law (HQ and command ops)
    • Troops levels agreement prior to UN Resolution do not need new Congressional authorization: has not been used in proactive
cases ins v chadha
Cases: INS v Chadha
  • Congress vetoed INS suspension of deportation proceedings: went to Court of Appeals
  • 9th Circuit Court of Appeals invalidated:
    • Congress may not grant itself a legislative veto over actions of the executive branch in conflict with the Presentment Clause (bicameral principle) of the United States Constitution.
  • Both houses need to vote to approve measure via the “Presentment Clause” when revoking power given to Executive Branch
cases campbell v clinton
Cases: Campbell v Clinton
  • Campbell and 17 Reps filed a lawsuit in FDC
  • Clinton accused of not reporting to Congress within 48 hours and
  • Did not obtain declaration of war prior to hostilities: House had voted 427 to 2 against declaration of war
    • Congress had voted for funding after action in Kosovo had been actively engaged = tacit approval
    • Legislators had sent confusing signals: Jackson #2
  • Campbell: should not be forced to cut troop funding to register complaint
  • Intent of WPR was for consultation
  • Plenty of reporting but little to no consultation: Presidents have met with Congress after deployment but before commencement
  • No clear mechanism for the President and Congress to consulting after hostilities commence
  • Who represents Congress?
  • When to invoke Section 4(a)(1) time limit?
    • Resolution may help or may limit flexibility
problem constitutionality
Problem: Constitutionality
  • 1973 - 2009: All President have refused to recognize the authority of Resolution
  • Reports Submitted: 118 (as of 2006)
    • Ford: 4
    • Carter: 1
    • Reagan: 14
    • Bush (HW): 7
    • Clinton: 60
    • Bush (W): 36
  • Congress: Article 1 Section 8

“To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water”

  • President: Article 1, Section 2

“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”

  • Who has the power to declare war?
  • Do we revise the War Powers Act?
  • How do you merge the two schools of thought on who declares a war?
two schools of thought
Two Schools of Thought
  • Congressional School
  • Executive School
arguments for the war powers act
Arguments for the War Powers Act
  • Allows the President to Act without needing the advice and consent of Congress
  • Congress can end hostilities by using the “power of the purse”
  • If Congress fails to act hostilities end in 60 to 90 days
arguments against the war powers act
Arguments Against the War Powers Act
  • Constitutional Problems
  • Contains only vague consultation requirements
  • No work around if one house disapproves
  • Presidents do not file documents to trigger the 60 or 90 day clock
policy proposal
Policy Proposal
  • War Powers Consultation Act
war powers consultation act
War Powers Consultation Act
  • Consultation before declaration or authorization of war
  • Congress must hold a vote 30 days
  • Joint Congressional Committee will be established
joint congressional committee
Joint Congressional Committee

The Speaker of the U.S. House of Representatives and the Majority Leader of the Senate

The Minority Leaders of the House of Representatives and the Senate

The Chairman and Ranking Minority Members of each of the following Committees of the House of Representatives:

  • The Committee on Foreign Affairs,
  • The Committee on Armed Services,
  • The Permanent Select Committee on Intelligence, and
  • The Committee on Appropriations.

The Chairman and Ranking Minority Members of each of the following Committees of the Senate:

  • The Committee on Foreign Relations,
  • The Committee on Armed Services,
  • The Select Committee on Intelligence, and
  • The Committee on Appropriations.
  • There will need to be consultation
  • Congress can have a joint resolution of disapproval on an armed conflict
  • President will need Congressional approval before even thinking about an armed conflict
further reading
Further Reading
  • “National War Powers Commission Report”
    • Co-Chairs James A. Baker III and Warren Christopher.
    • Miller Center of Public Affairs, University of Virginia, 2009
  • “War Powers Resolution: Presidential Compliance” November 2004
    • CRS Issues Brief for Congress. Congressional Research Service, Library of Congress.
  • "Judge sides with Clinton" June 9, 1999
    • U.S. House of Representatives homepage: