The fundamental conflict between Article I, Section 8 and Article II, Section 2 of the United States Constitution gave occasion to the passing of The War Powers Act of 1973 also known as The War Powers Resolution of 1973. The former constitutional provision granted the power to declare war to Congress while the latter appointed the President of the United States to be the Commander-in-Chief of the country’s armed forces. The conflict occurred because the Presidents, in sending American soldiers to war in their capacity as their Commander-in-Chief, have been ignoring the provision of the constitution which vested unto Congress the “sole power to declare war.
This practice was believed to have started when President Truman sent American soldiers to Korea without a congressional declaration of war. The truth was, the United States Congress had not officially declared any war after World War II (Lithwick). It was observed that the U. S. Presidents believed that as long as Congress did not declare any war formally, committing American soldiers to hostilities was within their constitutional power as Commander-in-Chief of the armed forces.
In other words, so long as Congress could be prevented from declaring war formally, the presidents retain a virtual free hand in such cases (Centre for European Policy Studies).
After the war in Vietnam, however, the members of Congress, in an effort to assert their authority to declare war which was granted by the constitution, passed The War Powers Act of 1973 over the veto which was exercised by then President Richard Nixon. Unfortunately, the act failed to settle with finality the conflict between the President and Congress. As a matter of fact, almost all American Presidents continued to ignore Congress, including The War Powers Act of 1973, for various reasons (Rasky).
The Act has three prominent sections. These are Sections 3 (which deals on “Consultation”); Section 4 (Reporting); and Section 5, which discusses “Congressional Action.” Section 3 specifically states that
The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations (War Powers Resolution of 1973).
This provision clearly asserts the constitutional authority of Congress in the declaration of war or the commitment of American soldiers to any war or war-like activities. In other words, Congress do not only want to be consulted before the President sends any troops to hostile situations, but it should also be appraised of the situation while the troops are still in the area. Finally, the President should consult with Congress when the troops will already be withdrawn or have already been withdrawn.
Section 4, on the other hand, states that when American forces are deployed in hostilities without a war being declared, a written report should be submitted by the President within 48 hours of such deployment to both the Speaker of the House of Representatives as well as the President pro tempore of the U.S. Senate. The report should explain the reasons for the action and the “estimated scope and duration of the hostilities or involvement.” Aside from submitting this written report at least once every six months, the President should also answer any questions posed by Congress concerning its constitutional war-making powers (War Powers Resolution of 1973).
These provisions, unfortunately, had been cited as not only burdensome and dilatory, but also unfair, particularly Section 3, when Congress is in recess. For instance, President Gerald Ford experienced some difficulties along this line when American forces were being evacuated from DaNang sometime in 1975 and again in 1976 in Lebanon. He said that “When the evacuation of DaNang was forced upon us during the Congress’s Easter recess, not one of the key bipartisan leaders of the Congress was in Washington.” He said that because of the break, some of the key leaders were in Greece.
Others were in the People’s Republic of China, while there were those who spent the time in Mexico, the Middle East, and Europe. He expressed disappointment with the law, calling it unfair especially since, according to him, “military operations seldom wait for Congress to meet,” claiming further that many critical situations around the world in fact arose when it was nighttime in Washington (HOW AMERICA GOES TO WAR). In essence, President Ford was explaining that preparing for and/or actually going to war could be greatly hampered by all these consultations and reporting to Congress because any element of surprise or advantage of quick retaliation would be lost in the process.
Republican President Ronald Reagan had similarly experienced the dilatory effect of the War Powers Act in 1982. After deploying American Marines to Lebanon, President Reagan complied with the provision of the act by making a report about the deployment to Congress. In spite of the majority of the Republicans in the Senate, the deployment was vigorously opposed by the Democratic congressmen who were the majority in the House of Representatives at the time. In other words, the deployment was not granted Congressional authority for several months, only to be approved later the following year after a compromise was reached by the leaders of both houses of Congress, authorizing the U.S. Marines to stay in Lebanon for 18 months.
What made matters worse was the observation of some quarters that the opposition to the deployment had been mainly due to partisan political reasons. President Reagan, for his part, was greatly disappointed with the compromise especially since it sought President Reagan’s assurances on what the Marines were not supposed to do, thereby tying down their hands and reducing their effectiveness (HOW AMERICA GOES TO WAR).
According to observers, the delay in the authorization and the challenges made in the House of Representatives had the effect of weakening the negotiating position of President Reagan not only with Syria but also with the warring political groups found in Lebanon. As a result, the Department of State’s Director of the Policy Planning Staff, Peter W. Rodman, said that the presence of the Marines in Lebanon was stripped of its deterrent impact. Specifically, Rodman explained that what happened in Congress “convinced the Syrians that the United States was ‘short of breath’ …, thus undermining the delicate diplomatic efforts …that sought a negotiated solution”
By March 6, 1984, Senator Howard Baker, the Majority Leader, was already questioning the appropriateness and the relevance of the War Powers Act as an interactive tool between the two branches of government. He voiced the opinion that the country’s military involvement in other countries could not always start off “with a prolonged tedious and divisive negotiation between the executive and the legislative branches of Government [because] The world and its many challenges to [American] interests simply do not allow [such] luxury” (HOW AMERICA GOES TO WAR).
Records would later show that that Lebanese episode was the first and only incident where Congress was able to invoke the War Powers Act. Nevertheless, a compromise subsequently produced the required congressional authority and effectively aborted what could have been a genuine face-off between the two branches of government (Rasky).
Section 5, which provides for the necessary congressional action, is the third important section of the Act. Subsection (a) of this section provides that when Congress is not in session for at least three days when the President’s report is being transmitted to Congress, the President could be requested jointly by the President pro tempore of the Senate and the Speaker of the House of Representative to convene Congress for the sole purpose of considering the report and taking any appropriate action where necessary. Obviously, this provision should be interpreted as proof of Congress’s intention of giving due priority to the problem.
Subsection (b), on the other hand, requires the President to withdraw the American forces from the area of hostilities sixty days from the filing of the report to Congress unless: Congress has either officially declared war or has issued its authorization for the continued use of the American forces; has granted a statutory extension after the sixty-day period has lapsed; or fails to convene for the purpose of acting on the matter resulting from any armed attack from hostile parties.
This section likewise specifies that in a case where an extension to the sixty-day period is requested by the President for any valid reason, Congress is only empowered to grant an additional 30 days to effect the safe withdrawal of the American forces. Finally, subsection (c) specifically provides that “at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution” (War Powers Resolution of 1973).
According to this subsection, a concurrent resolution by the House of Representatives and the Senate could compel the President to immediately withdraw American forces from undeclared wars. This, however, has been deemed unconstitutional by some quarters, interpreting the provision as giving “the force of law to a concurrent resolution, which is passed by majorities in both chambers of Congress, but is not presented to the President for his consent or veto.” They have cited Article I, Section 7, Clause 3 of the Constitution which provides that
Every Order, Resolution, or Vote to which Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two-thirds vote of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the case of a Bill (HOW AMERICA GOES TO WAR).
Lithwick, Dahlia. “What War Powers Does the President Have?” 15 January 2008.
Centre For European Policy Studies. “On a European War Powers Act.” 19 February 2007.
15 January 2008. <http://ceps01.link.be/Article.php?=&article_id=80>
“HOW AMERICA GOES TO WAR.” The Progressive Conservative. Ed. Alman Leroy Way,
Jr. 10 June – 31 December 1999. 15 January 2008.
Rasky, Susan F. “War Powers Act: Years of Conflict Over Constitutionality.” New York
Times online. 19 April 1988. 15 January 2008.
“War Powers Resolution of 1973.” Almanac of Policy Issues. 7 November 1973. 15 January