War Powers Resolution
Clement J. Zablocki (D-WI) on May 3, 1973 ) |
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Yemen War Powers Resolution |
The War Powers Resolution (also known as the War Powers Resolution of 1973 or the War Powers Act) (
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 (AUMF) 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.[1]
Background
Under the
- declare war
- grant Letters of Marque and Reprisal(i.e., license private citizens to capture enemy vessels)
- raise and support Armies (for terms up to two years at a time)
- 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 [the militia] as may be employed in the Service of the United States.
Section 8 further provides that the
- 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[2][3] 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 (or inactions) provide "Aid and Comfort" to enemies or levy war against the United States, then Congress has the power to impeach and remove (convict) 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.
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.[4]
The War Powers Resolution was passed by both the
Implementation, 1993–2002
Presidents have submitted 130
Congress invoked the War Powers Resolution in the
On November 9, 1993, the House used a section of the War Powers Resolution to state that U.S. forces should be withdrawn from
After the 1991
Libya, 2011
Secretary of State
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.[19] President Obama notified Congress that no authorization was needed,[20] since the US leadership had been transferred to NATO,[21] and since US involvement was somewhat "limited". In fact, as of April 28, 2011, the US 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.[22] By September, the US had conducted 26 percent of all military sorties, contributing more resources to Operation Unified Protector than any other NATO country.[23] The State Department requested (but never received) express congressional authorization.[17][24]
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.[25][26] In The New York Times, an opinion piece by 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."[27]
Syria, 2012–2017
In late 2012 or early 2013, at the direction of U.S. President
In spite of the prohibition, Obama, and later U.S. President
Yemen, 2018–2019
In 2018, Senators
Sanders first introduced the bill in the 115th Congress in February 2018, but the Senate voted to table the motion in March 2018.[33] Interest grew in the bill after the assassination of Jamal Khashoggi in October 2018, with the Senate also approving a resolution holding Saudi Crown Prince Mohammed Bin Salman responsible for Khashoggi's death.[34] The Senate voted 56-to-41 to invoke the War Powers Resolution in December 2018.[34] However, the House of Representatives did not vote on the resolution before the conclusion of the 115th Congress.[35]
The bill was introduced in the 116th Congress in January 2019[36] with Sanders announcing a vote to take place on March 13, 2019.[35] The bill was approved by the Senate in a 54–46 vote and was approved by the House of Representatives 247–175.[37][38]
The bill was vetoed by President Trump on April 16, 2019. On May 2, 2019, the Senate failed to reach the two-thirds majority vote in order to override the veto.[39]
Iran, 2020
On January 4, 2020, the White House officially notified Congress that it had carried out a fatal drone strike against Iranian General Qasem Soleimani a day earlier. House Speaker Nancy Pelosi said that the entire document was classified and that it "raises more questions than it answers." Senate Majority Leader Mitch McConnell said he would set up a classified briefing for all senators.[40]
Senator Tim Kaine (D–VA) had already introduced a resolution to prevent the U.S. Armed Forces or any part of the government to use hostilities against Iran.[41][42] Senator Bernie Sanders (I–VT) and Representative Ro Khanna (D–CA) introduced an anti-funding resolution, also on January 3.[43]
The Trump Administration stated that the attack on Qasem Soleimani was carried out in accordance with the War Powers Resolution under the Authorization for Use of Military Force (AUMF) resolution of 2002. The legalities of using the AUMF for endless conflicts has been a source of debate.
On February 13, 2020, the Senate passed a similar legally-binding privileged resolution by a vote of 55–45. Trump vetoed the Senate resolution on May 6, 2020, stating the resolution mistakenly "implies that the president's constitutional authority to use military force is limited to defense of the United States and its forces against imminent attack." Kaine stated Trump's veto could enable "endless wars" and "unnecessary war in the Middle East".[44] The Senate attempted to override the veto the following day. The attempt need at least 67 votes to override, with it failing by a vote of 49–44.[45]
Questions regarding constitutionality
The War Powers Resolution has been controversial since it was passed.[46] In passing the resolution, Congress specifically cites the Necessary and Proper Clause for its authority.[47] 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.
There is controversy over whether the War Powers Resolution's constraints on the President's authority as Commander-in-Chief are consistent with the Constitution.[48] 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.[49]
One argument for the unconstitutionality of the War Powers Resolution by
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
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
A hearing was held before the Subcommittee on Federal Spending Oversight and Emergency Management of the Committee on Homeland Security and Governmental Affairs, United States Senate, on June 6, 2018, on war powers and the effects of unauthorized military engagements on federal spending. The witnesses giving testimony before the subcommittee were law professors Andrew Napolitano and Jonathan Turley, and Christopher Anders of the ACLU.[54]
References
- ^ "War Powers - Law Library of Congress - Library of Congress". Library of Congress.
- ^ The Records of the Federal Convention of 1787, at 318-19 (Max Farrand ed., rev. ed. 1966)(1911)
- ^ [1] Archived December 15, 2008, at the Wayback Machine
- ^ a b "War Powers Act". November 30, 2017.
- ^ a b "When Congress last used its powers to declare war". December 8, 2018. Retrieved October 15, 2019.
- ^ U.S. Library of Congress. Congressional Research Service. War Powers Resolution: Presidential Compliance. Washington: The Service, 2011 (RL33532), Summary.
- ^ Savage, Charlie (2011-04-01) Clock Ticking on War Powers Resolution, The New York Times The Caucus Blog
- ^ Campbell v. Clinton, vol. 203, February 18, 2000, p. 19, retrieved February 23, 2017
- ^ How War Powers, Congressional Action have Intersected Over Time The Wall Street Journal (2013-09-02)
- Pub. L.107–243 (text) (PDF)
- ^ "Congress members grill administration officials on Libya mission". CNN. March 31, 2011.
- ^ Lillis, Mike; et al. (March 30, 2011). "White House briefing changes few minds on Libya involvement". The Hill.
- ^ Crabtree, Susan (March 30, 2011). "Clinton To Congress: Obama Would Ignore Your War Resolutions". Talking Points Memo.
- ^ Charlie Savage (May 26, 2011). "Libya Effort Is Called Violation of War Act". The New York Times. p. A8.[permanent dead link]
- ^ Savage, Charlie (June 18, 2011). "2 Top Lawyers Lost to Obama in Libya War Policy Debate". The New York Times. p. A1.
- ^ Savage, Charlie (June 18, 2011). "President overruled 2 key lawyers on debate over Libya war policy". The Seattle Times.
- ^ JURIST(June 28, 2011).
- ^ Gvosdev, Nikolas; Stigler, Andrew (June 28, 2011). "Defining War in an Ill-Defined World". Opinion. The New York Times. Retrieved February 13, 2020.
- ^ Libya War Deadline Arrives Fox News
- ^ "White House on War Powers Deadline: 'Limited' US Role in Libya Means No Need to Get Congressional Authorization", ABC News, May 20, 2011 Archived September 16, 2017, at the Wayback Machine
- ^ "Libya: Nato assumes control of military operation". BBC News. March 27, 2011.
- ^ "Libya Fact Sheet | NATO - United States Mission". Archived from the original on October 5, 2015. Retrieved October 4, 2015.
- ^ "Remarks to the Press on Libya and Operation Unified Protector | United States Mission to NATO". Archived from the original on October 16, 2015. Retrieved October 4, 2015.
- ISBN 9780833088079.
- ^ Dinan, Stephen, "Bipartisan Congress rebuffs Obama on Libya mission". The Washington Times, Saturday, June 4, 2011
- ^ Steinhauer, Jennifer (June 3, 2011). "House Rebukes Obama for Continuing Libyan Mission Without Its Consent". The New York Times.
- ^ Ackerman, Bruce. "Legal Acrobatics, Illegal War", The New York Times (June 21, 2011). Page A27.
- ^ Barnes, Julian E.; Entous, Adam (February 17, 2015). "U.S. to Give Some Syria Rebels Ability to Call Airstrikes". The Wall Street Journal. Retrieved February 17, 2015.
- Pub. L.113–164 (text) (PDF)
- ^ "Was Trump's Syria Strike Legal? An Expert Weighs In". Retrieved April 7, 2017.
- ^ a b Caldwell, Leigh Ann (November 28, 2018). "Senate advances bill to end U.S. involvement in Yemen war after 'inadequate' briefing on Saudi Arabia". NBC News. Retrieved January 1, 2019.
- ^ Ward, Alex (November 28, 2018). "The Senate is moving closer to ending US support for the war in Yemen". Vox. Retrieved January 1, 2019.
- ^ S.J.Res. 54
- ^ a b Hirschfeld Davis, Julie; Schmitt, Eric (December 13, 2018). "Senate Votes to End Aid for Yemen Fight Over Khashoggi Killing and Saudis' War Aims". The New York Times. Retrieved December 18, 2018.
- ^ a b Levin, Marianne (March 12, 2019). "Senate set to again admonish Trump over Yemen on Wednesday". politico.com. Politico. Retrieved March 13, 2019.
- ^ S.J.Res. 7
- ^ "Senate votes to end US support of Saudi-led Yemen war". BBC News. March 14, 2019. Retrieved March 14, 2019.
- ^ Killough, Ashley; Barrett, Ted (April 4, 2019). "House sends Yemen War Powers Resolution to Trump, where it faces veto threat". CNN. Retrieved April 4, 2019.
- ^ George, Susannah (May 2, 2019). "Trump's Yemen war policy survives Senate's veto override bid". AP News. Retrieved February 13, 2020.
- ^ Frazin, Rachel (January 4, 2020). "White House sends Congress formal notification of Soleimani strike". The Hill. Retrieved February 13, 2020.
- ^ Schulz, Jacob (January 3, 2020). "Sen. Kaine Introduces War Powers Resolution on Iran Conflict". Lawfare.
- ^ Lemieux, Melissa (January 3, 2020). "Sen. Tim Kaine Introduces Resolution to Stop War with Iran: 'I've Been Deeply Concerned about President Trump Stumbling into a War'". Newsweek. Retrieved February 13, 2020.
- ^ Axelrod, Tal (January 3, 2020). "Sanders, Khanna introduce legislation to block funding for a war with Iran". The Hill.
- ^ Crowley, Michael (May 6, 2020). "Trump Vetoes Measure Demanding Congressional Approval for Iran Conflict". The New York Times. Retrieved May 10, 2020.
- ^ U.S. Senate upholds Trump veto of 'insulting' Iran war powers resolution Reuters
- ^ "The war powers resolution". US Department of State Bulletin. September 15, 1988. Retrieved July 9, 2008. "The War Powers Resolution has been controversial from the day it was adopted over President Nixon's veto. Since 1973, executive officials and many Members of Congress have criticized various aspects of the law repeatedly."
- ^ War Powers Joint Resolution, §2(b).
- ^ Rushkoff, Bennett C. "A Defense of the War Powers Resolution." Yale Law Journal 93, no. 7 (June 1984): 1333-35.[2]
- ^ "War Powers Resolution: Presidential Compliance". September 25, 2012. Retrieved February 18, 2021.
- ^ "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.
- ^ "Myers v. United States, 272 U. S. 52 (1926)".
- ^ "The Constitution of the United States - We the People - an easy to read and use version". launchknowledge.com. September 10, 2020.
- ^ Rushkoff, Bennett C. "A Defense of the War Powers Resolution." Yale Law Journal 93, no. 7 (June 1984): 1349-50.[3]
- ^ United States. Congress. Senate. Committee on Homeland Security and Governmental Affairs. Subcommittee on Federal Spending Oversight and Emergency Management (2019). War Powers and the Effects of Unauthorized Military Engagements on Federal Spending: Hearing Before the Subcommittee on Federal Spending Oversight and Emergency Management of the Committee on Homeland Security and Governmental Affairs, United States Senate, One Hundred Fifteenth Congress, Second Session, June 6, 2018. Washington, DC: U.S. Government Publishing Office. Retrieved February 7, 2019.
Sources
- Grimmett, Richard Z. (February 14, 2006). "CRS Report for Congress: War Powers Resolution: Presidential Compliance" (PDF). Federation of American Scientists. Retrieved September 30, 2007.
- United States Congress (November 7, 1973). "War Powers Resolution of 1973 (Public Law 93-148)". The Center for Regulatory Effectiveness. Retrieved September 30, 2007.
- United States Congress (October 31, 1998). "H.R.4655: Iraq Liberation Act of 1998 (Public Law 105-338)". IraqWatch.org. Archived from the original on June 30, 2009. Retrieved September 30, 2007.
- United States Congress (September 18, 2001). "Public Law 107-40: Joint Resolution: To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States (S.J. Res. 23)" (text). United States Government Printing Office. Retrieved September 30, 2007.
- United States Congress (October 16, 2002). "Public Law 107-243: Authorization for the Use of Military Force Against Iraq Resolution of 2002 (H. J. Res. 114)" (text). United States Government Printing Office. Retrieved September 30, 2007.
- Kinkopf, Neil. "The Congress as Surge Protector" (PDF). American Constitution Society for Law and Policy. p. 2. Retrieved September 30, 2007.
The Supreme Court has been clear and unambiguous. When Congress, acting in the vast areas of overlapping power, tells the President 'no', the President must comply.
- Doumar, Robert G. (January 8, 2003). "Hamdi v. Rumsfeld Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk (CA-02-439-2)" (PDF). United States Judiciary. Archived from the original (PDF) on February 4, 2012. Retrieved September 30, 2007.
- Young, D. Lindley (February 24, 2003). "Amicus Curiae Brief in Support of Plaintiff's Appeal" (PDF). United States Judiciary. Archived from the original (PDF) on February 4, 2012. Retrieved December 6, 2011.
- Library of Congress (March 12, 2012). "Research Help: War Powers" (text). United States Government Library of Congress. Retrieved May 4, 2012.
External links
- Avalon Project - War Powers Resolution
- The War Powers Resolution: After Twenty-Eight Years November 15, 2001 PDF
- The War Powers Resolution: Concepts and Practice March 28, 2017 PDF
- War Powers Resolution: Presidential Compliance September 11, 2001 HTML
- War Powers Resolution: Presidential Compliance January 8, 2002 PDF
- War Powers Resolution : Presidential Compliance March 16, 2004 PDF
- War Powers Resolution: Presidential Compliance November 15, 2004 PDF
- The War Powers Resolution: After Thirty Years