‘Consultation’ limits president’s authority
Vail CO, Colorado
In consideration of the president’s resolve to send more troops to Iraq and Congress’ various proposals to either curb or simply protest the decision, it is worth considering the presidential power to make war. Simply put, what legal and constitutional authority does the president have to declare war or to launch a military campaign?
Not since World War II has the United States formally declared war. Not in Korea. Not in Vietnam. Article II, Section 2 of the U.S. Constitution, states 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. …”
However, the power to declare war is reserved for Congress. Specifically, Article I, Section 8 of the U.S. Constitution provides, in relevant part, that Congress shall have the power “to declare war.”
The constitutional powers of the president as commander in chief to introduce U.S. armed forces into hostilities may be exercised only after: a declaration of war, specific statutory authorization or a national emergency created by an attack upon the United States, its territories or possessions or its armed forces.
While it is clear that the Framers intended for Congress alone to declare war, presidents don’t always check with Congress before acting. After President Harry Truman bypassed Congress to go to war in Korea, presidents have paid little heed to the constitutional requirements.
One question is whether Congress must first declare a war before the president can command troops. And if Congress has not declared war, what happens if the president’s command of U.S. troops leads us into an undeclared war?
The War Powers Act is intended to address this and other conflicts. Passed by an irate Congress in 1973, the War Powers Act was a response to President Lyndon Johnson’s and President Richard Nixon’s prosecution of the war in Vietnam without a declaration of war. The purpose of the act is to ensure that the collective judgment of both Congress and the president is used before committing troops. It addresses, too, cooperation, collaboration and coordination between the legislative and executive branches in the continued use of U.S. forces.
Under the act, the president in every possible instance must consult with Congress before introducing troops into hostilities and then must consult with the Congress until forces are no longer engaged in the hostilities.
In the absence of a declaration of war, the president must submit within 48 hours to the speaker of the house and to the president pro tempore of the Senate a report setting forth the circumstances necessitating the use of the military; the constitutional and legislative authority under which that took place; and the estimated scope and duration of the hostilities or involvement. The president shall provide other information as Congress requests in fulfillment of its constitutional responsibilities.
Within 60 days of reporting to Congress, the president must terminate any use of the military, unless the Congress: has declared war or has enacted a specific authorization; has extended by law the 60-day period; or is unable to meet as a result of an attack. The 60-day period shall be extended for not more than an additional 30 days if the president determines and certifies to the Congress that unavoidable military necessity requires the continued use of the armed forces. While troops are deployed, the President must reports to Congress at least every 6 months.
Any time the armed forces are engaged in hostilities outside the United States without a declaration of war or specific statutory authorization, those forces shall be removed by the president if the Congress orders it.
There have been proposals to limit the act. Foremost among these efforts was the Peace Powers Act of 1995 sponsored by Senator Bob Dole. One of the key components of this act is to contemplate placing U.S. armed forces under foreign command. The concern of many people is that foreign commanders may be more willing to spend American blood than that of their own countrymen.
Section 5 of the proposed Peace Powers Act provides that the president may not subordinate any element of the U.S. military to any foreign nation unless Congress enacts a law authorizing it, or unless the President makes various findings and reports to various congressional committees. Sections 7 and 8 provide for prior congressional notification of proposed United Nations peacekeeping operations. These sections rely on the Congress’ spending power, which historically has been very broad.
While giving the president certain flexibility, the War Powers Act is not absolute and, ultimately, the power to wage extended war lies in the Congress. The act requires accountability and assures consultation with Congress and the American people. In a democracy, the people deserve no less.
There is little doubt that if the Congress is resolved to stymie the president or force withdrawal of our troops, a legal battle over constitutional interpretations will undoubtedly ensue. The questions we must ask as a nation is whether a war on two fronts is in our best interests, and whether a constitutional war at home may be more divisive than a battle overseas.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law.
Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus”. Robbins may be reached at (970) 926-4461 or at email@example.com