Congress’s Attempt to Limit the Commander-in-Chief’s Power

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A Constitutional Review of the Reporting Requirement of Section 4(a)(1) and Automatic Withdrawal Provisions of Section 5(b) of the War Powers Resolution

By Luis Zavala

I. Introduction

Article II, Section 2 of the Constitution names the President as the Commander-in-Chief of the naval and land forces of the United States.¹ It is generally agreed that the Commander-in-Chief role gives the President power to utilize the armed forces to repel attacks against the United States, but there has long been controversy over whether he is constitutionally authorized to send forces into hostile situations abroad without a declaration of war or other Congressional authorization.  Questions also remain as to what role Congress should play when U.S. forces are sent to hostile environments without express authorization.

Congress last used its power to declare war in 1941 when it declared war against the Empire of Japan and Nazi Germany.  Since that time U.S. forces have been used in numerous operations, some with Congressional approval short of a war declaration, some without any approval.  Following an alleged attack on a U.S. naval vessel in waters off the coast of Vietnam, Congress passed the Gulf of Tonkin Resolution authorizing the President to use all means necessary to retaliate for the attacks.² President Johnson used this Congressional authorization to launch the Vietnam War.

The War Powers Resolution of 1973 sought to counteract the Gulf of Tonkin Resolution and rein in the President’s power to make war.³ The Resolution constrains the President with its reporting requirement.  Found in Section 4(a)(1), the reporting requirement directs the President to report to Congress whenever U.S. armed forces are introduced into a hostile environment.⁴ If Congress fails to declare war, pass a law authorizing military action, or otherwise consents to the President’s action, Section 5(b) requires the President to redeploy military forces away from the area within 60-90 days.⁵

This paper will analyze the constitutionality of such requirements and whether placing these restrictions on the President’s ability to engage in foreign military actions is prudent.  For the reasons discussed in this paper, it is unlikely that Sections 4(a)(1) or 5(b) of the War Powers Resolution of 1973 would withstand a constitutional challenge.

II. Purpose of the War Powers Resolution of 1973

The primary purpose of the Resolution was to establish procedures for both branches of the government to share in decisions that might lead the United States into war.⁶ The drafters of the resolution sought to circumscribe the President’s authority to introduce armed forces abroad into hostile or potentially hostile situations without a declaration of war or other Congressional authorization, yet provide enough flexibility to permit him to respond to an attack or other emergencies.⁷

After World War II, the United States engaged in military action on the Korean Peninsula without a declaration of war by Congress.  However, hostilities were authorized by the United Nations Security Council in response to North Korea’s invasion of South Korea.⁸

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