Robbins: How the the War Powers Act works
We’re not there yet, and hopefully, we won’t be. But with Belarus threatening to join Russia in its murderous assault of Ukraine, Germany rearming, and the rest of NATO nervous and stirring, what if we were sucked into a war?
Well, there’s an act for that.
Under the United States Constitution, war powers are divided.
Under Article I, Section 8, among other powers, Congress has the power to: i) declare war; ii) raise and support Armies; iii) provide and maintain a Navy; iv) make rules for the government and regulation of the land and naval forces; v) provide for calling forth the militia; vi) make rules concerning captures on land and water; vii) provide for organizing, arming, and disciplining the militia; viii) govern such part of the militia as may be employed in the service of the United States; ix) appoint the officers of the militia; and x) 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.”
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It is generally agreed that, as commander-in-chief, the president is afforded the power to repel attacks against the United States 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.
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 requires a super-majority for legislative action that is contrary to the wishes of the president.
Checks and balances, even in the awful circumstance of war.
During the Vietnam War, the United States found itself involved for many years in a situation of war without a declaration of war. Members of Congress became concerned with the erosion of congressional authority to decide when the United States should or should not become involved in a war or the use of armed forces that might lead to one. Their concern was prompted by news leaking out that President Nixon had conducted secret bombings of Cambodia during the Vietnam War without notifying Congress.
The War Powers Act (known more accurately as the War Powers Resolution) was passed by both the House of Representatives and the Senate but was vetoed by Nixon. By a two-thirds vote in each house, the Congress overrode the veto and, on November 7, 1973, enacted the joint resolution into law.
What the Act is intended to accomplish is to check the U.S. president’s power to commit the United States to an armed conflict without the consent of the U.S. Congress. It provides, specifically, that the president can send the U.S. Armed Forces into action abroad only by declaration of war by Congress, “statutory authorization,” or in case of “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”
The resolution makes it incumbent upon 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 or a declaration of war by the United States.
That, of course, provides some latitude, perhaps, especially in modern warfare where prompt and brutal resolution of armed conflicts may be readily achieved.
It has been alleged that the War Powers Resolution has been violated in the past. For example, in 1999 by President Bill Clinton, during the NATO bombing of Yugoslavia. Although Congress has disapproved all such incidents, none has resulted in any successful legal actions being taken against the president for alleged violations.
In this a rare beast?
Unfortunately, no.
Presidents have submitted 130 reports to Congress as a result of the War Powers Resolution, although only one (the Mayagüez incident in 1975) specifically stated that forces had been introduced into hostilities or imminent danger.
The Resolution was invoked in Lebanon in 1982 and 1983, in the 1991 Gulf War, and in Somalia in 1994. More recently, under President Clinton, the presidential war powers were at issue in the former Yugoslavia, Bosnia, and Kosovo, as well as in Iraq and Haiti, and under President George W. Bush, in responding to the terrorist attacks against the United States after September 11, 2001. In October 2002, Congress enacted the Authorization for Use of Military Force Against Iraq which authorized President George W. Bush to use military might as necessary to defend the United States against Iraq and to uphold relevant United Nations Security Council Resolutions. It was raised again in Libya in 2011, Syria in 2012-217, Yemen in 2018-2019, and Iran in 2020.
What, one wonders, will be next?
Besides needless death and destruction, what will the current conflict bring? Will the U.S. role be broad or limited? Will it be over sooner or later? Will we at some point commit troops, even if in some constrained capacity? Can we, in this politically divided nation, come together and agree what must be done?
Time, I presume, will tell. With some skill and luck, perhaps cooler heads will ultimately prevail. One thing is sure though, if the assault on Ukraine continues or worse, swells, the days are long gone where America will stand idly by. The question is: How far will we go and, depending on the length and breadth of our involvement, will Congress and the president unite or be at loggerheads with one another over the direction, in the national interest, we must ultimately take?
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest LLC. His practice areas include: business and commercial transactions; real estate and development; family law, custody and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale)” and “The Stone Minder’s Daughter,” are currently available at Amazon.com — and coming soon, “Why I Walk So Slow.”
