Congress’s Attempt to Limit the Commander-in-Chief’s Power
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
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]]U.S. CONST. art. II, § 2.[[1]]{{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]]T.S. Boylan and G.A. Phelps, The War Powers Resolution: A Rationale for Congressional Inaction, (2001), http://findarticles.com/p/articles/mi_m0IBR/is_1_31/ai_73000546/, last visited on April 3, 2011.[[2]]{{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
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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
Congressional concern about Presidential use of armed forces without authorization intensified after the Korean conflict. During the Vietnam War, Congress searched for a way to assert its authority in deciding when the United States should become involved in a war or when armed forces should be utilized in circumstances that might lead to hostilities. On November 7, 1973, Congress overrode President Nixon’s veto and passed the War Powers Resolution (P.L. 93–148).9
After 40 years, the War Powers Resolution remains controversial. This paper analyses the constitutionality and prudence of Sections 4(a)(1) and 5(b) of the Resolution. However, constitutionality and prudence are not the only questions with the Resolution. It is important to understand how the law works, how it can be invoked, and the consequences for the President if the Resolution is not followed.
A. Requirements of Section 4(a)(1)
Section 4 of the War Powers Resolution requires the President to report to Congress whenever he introduces U.S. armed forces abroad in certain situations.10 Section 4(a)(1) is of key importance because it triggers the time limit and automatic withdrawal provisions in Section 5(b).11 Section 4(a)(1) requires the President to report to Congress within 48 hours, in the absence of a declaration of war or Congressional authorization, the introduction of U.S. armed forces “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.”12
The House Report on the War Powers Bill provides some indication of what actions constitute hostilities and imminent hostilities. The report states:
The word hostilities was substituted for the phrase armed conflict during the subcommittee drafting process because it was considered to be somewhat broader in scope. In addition to a situation in which fighting actually has begun, hostilities also encompasses a state of confrontation in which no shots have been fired but where there is a clear and present danger of armed conflict. ‘Imminent hostilities’ denotes a situation in which there is a clear potential either for such a state of confrontation or for actual armed conflict.13
Ambiguities in the language of the Resolution led to disagreements between the President and Congress as to when Section 4(a)(1) applies. The cases that follow are some examples of how Presidents have approached the reporting requirement of the Resolution. However, reporting to Congress is not in itself a point of contention, it is the trigger of Section 5(b) that has led to tension between the President and Congress.
B. Requirements of Section 5(b)
Congress intended Section 5(b) to provide teeth for the War Powers Resolution.14 After a report “is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier”, section 5(b) requires the President to terminate the use of U.S. Armed Forces after 60 days unless Congress (1) declares war or authorizes the action; (2) extends the period by law; or (3) is physically unable to meet as a result of an armed attack on the United States.15 The President can extend the removal by 30 days if he certifies that “unavoidable military necessity respecting the safety of United States Armed Forces” requires their continued use in the course of bringing about their removal.16
President Nixon, in his veto message, challenged the constitutionality of the War Powers Resolution, particularly two provisions. He argued that the legislative veto provision, permitting Congress to direct the withdrawal of troops by concurrent resolution, was unconstitutional. He also argued that the provision requiring withdrawal of troops after 60–90 days unless Congress passed legislation authorizing such use was unconstitutional because it checked Presidential powers without affirmative Congressional action.17 Every President since the enactment of the War Powers Resolution has taken the position that it is an unconstitutional infringement on the President’s authority as Commander-in-Chief.
Section 5(b) of the War Powers Resolution takes an enormous step in curtailing the President’s ability to wage war. This section forces the President to remove U.S. military forces from hostilities absent Congressional consent. It is this provision of the Resolution that has created conflict between the political branches as to who really directs the U.S. military and its use.
III. Application of the War Powers Resolution of 1973
A. Reporting under the War Powers Resolution
The reporting requirement of Section 4(a)(1) directs the President to report to Congress within 48 hours whenever U.S. forces are introduced into hostilities or imminent hostilities absent a declaration of war or other Congressional authorization.18Reports under Section 4(a)(1) are to be submitted to the Speaker of the House and the President pro tempore of the Senate, and must set forth: (1) The circumstances necessitating the introduction of United States Armed Forces; (2) the constitutional and legislative authority under which such introduction took place; and (3) the estimated scope and duration of the hostilities or involvement.19 The Resolution sets forth clear procedures that must take place when reporting under Section 4(a)(1). For this reason, Presidents have chosen to avoid reporting under this section.
Since the Resolution was enacted in 1973, through November 14, 2003, there have been 111 instances when Presidents have reported to Congress under Section 4(a)(1) the introduction of U.S. forces into hostile situations.20 Reports have been submitted to Congress on military actions ranging from exchanges of fire with terrorists in the Persian Gulf to full military invasions.21 The frequency of these reports indicates that Presidents have not had a problem with alerting Congress when U.S. forces are placed in harms way. However, there have been numerous instances when reporting has taken place, but not under Section 4(a)(1). Rather, Presidents have bypassed the automatic withdrawal provisions of Section 5(b) by not citing Section 4(a)(1).
Presidential reporting to Congress under Section 4(a)(1) encompasses a wide variety of situations. The first reporting came in 1975 when President Gerald Ford sent U.S. forces into Vietnam to transport refugees from combat zones to safer areas.22 The reporting requirement of the War Powers Resolution, on its own, does not appear to pose a conflict to Presidential authority over foreign affairs. Section 4 does not hinder the President’s ability to send troops overseas, nor does it constrain his actions in conducting foreign affairs. Section 4 simply codifies into law a prudent practice of ensuring communication between the legislative and executive branches of the government. Since Congress controls the nation’s purse strings it is well advised for the President to keep Congress informed of military activity.
Reporting to Congress under other sections of the Resolution has taken place because citing Section 4(a)(1) automatically triggers Section 5(b). Triggering Section 5(b) brings added responsibilities and requirements to the President. Circumventing the reporting section of the Resolution cannot be what Congress sought Presidents to do. Section 4(a)(1) requires reporting to take place when U.S. forces are introduced into hostilities or imminent hostilities and simply redefining the term, or classifying military actions as something other than hostile defeats the purpose and spirit of the Resolution.
B. Hostilities and Imminent Hostilities under the War Powers Resolution
The House Report on its War Powers Bill provides some indication of what constitutes as hostilities and imminent hostilities.23Presidents still have wide latitude in interpreting exactly what constitutes hostilities and imminent hostilities. There have been many instances that could have been classified as imminent hostilities but were not and thereby not reported to Congress. For example, in November 1974, one year after the passage of the War Powers Resolution, U.S. forces were sent to Cyprus to evacuate civilians caught in the fighting between Greek and Turkish forces.24 Although U.S. forces were part of a larger United Nations Peace Keeping Force (UNFICYP) there was no explicit Congressional authorization for the action. Sending military personnel to a war zone could be classified as imminent hostilities. However, President Ford did not report the action to Congress stating that the force’s purpose was not hostile, but rather to evacuate civilians.25
U.S. forces were involved in other similar transport activities. Military forces were used in the evacuation of civilians from Lebanon in 1976 26, in the transport of troops into a war zone in Zaire in 197827, and force augmentations in Panama in 1987 and 1988.28 These actions, one can argue, constitute hostilities or imminent hostilities. Despite this possible categorization, Presidents have failed to report these actions to Congress under Section 4(a)(1).
This lack of consultation with the legislative branch is what Section 4(a)(1) sought to remedy. However, minimal tensions have resulted from this failure to report. The President and Congress have clashed over other parts of the War Powers Resolution, parts that codify a concrete limit on Presidential authority when utilizing the military. It is important to note that since the Resolution’s enactment in 1973, all Presidents have regarded the law as unconstitutional because it impermissibly infringes on the President’s power as Commander-in-Chief and his power over foreign affairs. Side stepping Section 4(a)(1) by not classifying military involvement is one way to show Congress that the President retains authority over foreign and military affairs.
When the President reports to Congress under Section 4(a)(1) that U.S. forces are, or have been, introduced into hostilities or imminent hostilities, the 60–90 withdrawal provision of the Resolution is triggered. For this reason, some actions that would otherwise qualify under the Resolution have not been reported. Perhaps it is this added constraint on Presidential authority that has prevented full reporting under Section 4(a)(1). Congress has rarely found fault with this reclassification of military involvement. However, there have been instances when the executive and legislative branches have clashed over this reporting requirement.
C. Invocation of the War Powers Resolution
Since its inception the War Powers Resolution has faced fierce opposition by the executive branch. President Nixon vetoed the bill and sent Congress a strongly worded rebuke explaining his concerns with the law.<29 After the veto was overridden by two thirds of both houses of Congress, the War Powers Resolution because law and continued to face obstacles. Between 1973 and 1983 there were at least eight instances of military use by the President that was not reported to Congress under Section 4(1)(a) of the Resolution.30 This omission allowed the President to avoid the automatic withdrawal requirement of Section 5(b). In 1983, the War Powers Resolution faced its most serious challenge to its existence since President Nixon’s veto ten years earlier.
In July 1982 President Reagan announced that U.S. Marines would be sent to Lebanon to participate in a multi-national peacekeeping operation.31Congress advised the President that if such a force were sent it would be sent into imminent hostilities and required Congressional notification under Section 4(a)(1).32 President Reagan disagreed stating that an agreement with Lebanon specifically ruled out any combat responsibilities.33
In August 1983 the Marines came under hostile fire. During this time period President Reagan filed three reports to Congress under the War Powers Resolution but did not cite Section 4(a)(1), thus avoiding the 60–90 day automatic withdrawal provision of Section 5(a).34In response Congress enacted legislation that invoked the reporting requirement of the Resolution and required the President to remove U.S. forces from Lebanon.35
Senator Robert Byrd introduced S.J.Res. 163 finding that section 4(a)(1) of the War Powers Resolution applied to the circumstances in Lebanon. The House Appropriations Committee approved an amendment to the continuing resolution for fiscal year 1984 (H.J.Res. 367), sponsored by Representative Clarence Long, providing that after 60 days, funds could not be “obligated or expended for peacekeeping activities in Lebanon by United States Armed Forces,” unless the President had submitted a report under section 4(a)(1) of the War Powers Resolution. The full body later rejected a similar amendment, but it reminded the Administration of possible Congressional actions.36
Congress used the threat of withholding funds for the Lebanon Peacekeeping operation to force President Reagan to comply with the War Powers Resolution. Reagan did comply, but not immediately. In September 1983, the President and Congress reached an agreement. The President agreed to legislation that would invoke Section 4(a)(1) triggering the automatic withdrawal provision of Section 5(b). Congress agreed to legislation that would allow U.S. forces to remain deployed to Lebanon for an additional 18 months.37
When Congress enacted legislation invoking Section 4(a)(1) of the War Powers Resolution it created a dilemma for the President and potentially for the U.S. Supreme Court. The legislation served to implement Section 5(b) of the Resolution, requiring either Congressional approval of military action or complete removal of U.S. forces from Lebanon. If the President bowed to such pressure his power as Commander-in-Chief would have been severely curtailed. Had no compromise been reached between Congress and the President on the issue, the matter would almost certainly have been fought in federal court. Ultimately a court battle was avoided but the compromise did not settle the constitutional question of the War Powers Resolution.
Section 4(a)(1) is important not because it requires the President to report to Congress military involvement overseas, but rather, it triggers the most contentious part of the Resolution, Section 5(b). Past Presidents have sought to bypass the Resolution by offering partial compliance. That is, informing Congress of military involvement under the Resolution but not citing Section 4(a)(1). The 1983 Lebanon example shows some of the remedies that Congress can use to force compliance. However, the example also demonstrated that without Presidential cooperation, Congress is faced with the tough decision of cutting off funding for U.S. forces overseas while troops are engaged in hostile action.
IV. Presidential Adherence to the War Powers Resolution
A. Is Section 4(a)(1) Binding?
Congress intended the War Powers Resolution to be an additional check on the President’s ability to make war. The reporting requirement of Section 4(a)(1) was intended to give Congress notice when U.S. forces were introduced into hostilities or imminent hostilities. With this information Congress would either authorize military action or the President would have to redeploy U.S. forces.
The binding nature of Section 4(a)(1) rests on the binding nature of the entire Resolution. If the constitutionality of the Resolution is challenged because it impermissibly infringes on the President’s ability to conduct foreign affairs or his authority as Commander-in-Chief, then there is no question that Section 4(a)(1) is not binding. The reporting requirement itself is not flawed. This section is an impermissible encroachment on the executive because it forces the President to change a course of action when engaged in military activity. This requirement is not only dangerous politically, but more significantly can also place U.S. forces in danger from the enemy.
Although Presidents have challenged the constitutionality of the War Powers Resolution since its inception, no court has found the Resolution to be unconstitutional. Furthermore, although with some level of reluctance, Presidents have for the most part followed the Resolution. Presidents routinely inform Congress when U.S. forces are introduced into hostilities or imminent hostilities. Presidents often seek Congressional authorization when major military operations will take place. And Presidents have been reluctant to battle Congress over the applicability of the Resolution. However, there have been instances when the two branches have disagreed over the mandates of the Resolution. The following options analyze how Presidents have followed or ignored the War Powers Resolution.
B. Options When Non-Compliance Occurs
An important question to consider when discussing the legality of the War Powers Resolution is what actions can Congress take if the President does not follow the strict mandates of the Resolution? The 1983 Lebanon example demonstrates Congress’s most powerful weapon to force Presidential compliance, money. The Constitution gives Congress the power of the purse and requires the President to petition Congress for funds to function and carry out military missions.
Control over appropriations is powerful because without funds, the President cannot carry out his policies. However, this power is not without controversy or political pitfalls. The constitutional Framers created a government based on checks and balances. It was the Framers’ intent not to give one branch of the government so much power that it could marginalize the other branches. In giving Congress the power of the purse, the Framers made a calculation that the power would be used wisely. One of the areas that has traditionally been above political squabbling is the military.
Since the end of the Vietnam War, and especially since the terrorist attacks of September 11, 2001, support for the military has been unwavering. Funding for the Defense Department and other national security related activities has not seen a decrease for many years. It is doubtful that Congress would use its power of the purse to try and force the President into a course of action at odds with his military or foreign policy objectives. When the Democratic Party gained majority control of both houses of Congress in 2006 it wanted to bring an end to the unpopular war in Iraq. Congress could have ended American involvement in Iraq rather quickly by cutting off funding for the war. However, this move was politically risky, if not suicidal, and could have placed American troops in danger by forcing a hasty withdrawal.
So what other options are available to Congress to force Presidential compliance with the War Powers Resolution? Beside its power of the purse, Congress can exert political pressure if a particular military action is unpopular. It is unlikely that political pressure alone can direct a course of action, but it has occurred. Following Congressional approval of military involvement in Lebanon in September 1983, popular support for the action dwindled after the U.S. Marines Barracks in Beirut was bombed killing 241 Marines.39 Federal courts have also served as arbiters between the legislative and executive branch to settle disputes. However, this option also has limitations. It is well settled that the judiciary will not entangle itself in political questions.40 As subsequent examples will show, using the judicial system to force the President to comply with the Resolution has not been successful. It is more likely that the President will use the court system to invalidate parts, or the entirety, of the War Powers Resolution as an unconstitutional infringement on executive power.
C. Is Impeachment an Option for Non-Compliance?
Article II, Section 4 of the United States Constitution states that the President “Shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.”41 Impeachment of a President has only occurred twice in the 220-year history of the Constitution. Based on precedent set by the Impeachment of President Andrew Johnson, if the President were to ignore a valid law duly enacted by Congress, his actions would certainly qualify for impeachment. The Constitution is vague as to what actions are sufficient for Impeachment. Thus, an Impeachable offense is whatever the House of Representatives decides it is.
Since the adoption of the Constitution only two Presidents have been impeached, Andrew Johnson and William J. Clinton. Of these two cases, President Johnson’s impeachment is most instructive for this paper. President Johnson was impeached because he refused to abide by a statute enacted by Congress to curtail his power as Chief Executive.42
On March 2, 1867, Congress enacted the Tenure of Office Act over President Johnson’s veto.43 The Act stated that all federal officials whose appointments required Senate confirmation could not be removed without Senate approval.44 The law was enacted because Senate Republicans believed that the President’s policies on Reconstruction were too lenient. When President Johnson removed Secretary of War Edwin Stanton the Senate refused to consent. The President did not allow Stanton to return to his post believing that the Tenure of Office Act was an unconstitutional infringement on the power of the Chief Executive.45
Following President Johnson’s defiance of the Act, the House of Representatives initiated impeachment proceedings. The House passed articles of impeachment in February 1868 and sent them to the Senate for trial. The Articles of Impeachment charged the President committed High Crimes and Misdemeanors by refusing to follow a law passed by Congress.46 The Senate ultimately acquitted President Johnson by one vote but precedent was established for Impeaching a President for failure to follow a Congressional statute.
President Johnson’s impeachment provides a window into what Congress could do if a President refused to follow the mandates of the War Powers Resolution. Although the constitutionality of the Resolution has been called into question, it is still valid law. Thus, Congress could impeachment the President for failure to adhere to it.
The similarities between the War Powers Resolution and the Tenure in Office Act are vast. Both acts of Congress were enacted to curtail the President’s power (the Tenure in Office Act was enacted to curtail the President’s power as Chief Executive while the War Powers Resolution was enacted to curtail the President’s power as Commander-in-Chief) at a time when Congress disagreed with how the President was executing his responsibilities. Congress overrode vetoes for them to become law. Presidents Johnson and Nixon argued that the acts were unconstitutional encroachments on the President’s constitutional authority.
The fate of the Tenure in Office Act can also serve as an example of what the future might hold for the War Powers Resolution. After the Senate acquitted President Johnson in his impeachment trial, subsequent Presidents lobbied for the repeal of the Act. It was not until twenty years later that the Act was finally repealed under President Grover Cleveland.47 However, the repeal of the Act did not invalidate Congress’s power to limit or set guidelines how the President carries out his constitutional duties. This dispute was finally laid to rest with the Supreme Court’s decision in Myers v. United States.
During the late Nineteenth century civil service reform gained momentum as a movement in the United States. In response, Congress enacted a law mandating that certain Postmasters needed Senate approval for appointment and removal.48 In 1920, President Wilson removed Postmaster Frank Myers from office without Senate approval.49 Much like the Tenure in Office Act, this law sought to curtail the President’s power as Chief Executive by limiting his removal authority of executive branch members. Chief Justice Taft, writing for the majority, struck down the law stating that it violated the separation of powers.50 The Supreme Court found that Congress had overstepped its authority by trying to limit the President’s power of removal because the Constitution did not mention or provide a specific method for removing civil servants.51
In its decision, the Court also addressed the Tenure in Office Act. Although Congress repealed the Act over 30 years earlier, the Court stated in no uncertain terms that the Act had been unconstitutional.52 The Myers opinion was not unanimous53 but the Court did provide a strong opinion reprimanding Congress for its constitutional breach. The Court could apply the Myers rationale to the War Powers Resolution if a constitutional challenge is ever made. The Resolution, like the Tenure in Office Act, deals with issues of Presidential power not addressed in the Constitution. The President’s power as Commander-in-Chief is broad and his authority in foreign affairs has throughout the history of the United States been vast. Under the Constitution, Congress is entrusted with the power to raise an army and declare war.54 During the Vietnam War Congress witnessed the President wage an unpopular war and recognized the need to assert a more prominent role in such decisions. However, it is unclear whether the Resolution, specifically Section 4(a)(1) and Section 5(b), if challenged, would be upheld.
V. Presidential Approaches to the War Powers Resolution
A. President Carter’s actions in response to the Iranian hostage crisis.
Since the enactment of the War Powers Resolution, Presidents have maintained that the law is an unconstitutional infringement on their duties as Commander-in-Chief. One of the first big challenges to face the new law occurred during the Iranian hostage crisis in 1979. After an unsuccessful attempt on April 24, 1980 to rescue American hostages being held in Iran, President Carter submitted a report to Congress to meet the requirements of the War Powers Resolution, although he did not consult with them in advance. The Administration took the position that consultation was not required because the mission was a rescue attempt, not an act of force or aggression against Iran. In addition, the Administration contended that consultation was not possible or required because the mission depended upon total surprise.55 Once again, a President, by redefining military action as something other than what it was, sought to justify noncompliance with Section 4(a)(1) of the Resolution. President Carter made a lukewarm effort at compliance with the Resolution by alerting Congress of possible military action, but not reporting when the action began.
The Iranian crisis brought a new level of contention between the President and Congress over the Resolution. Congress responded with some new guidelines for compliance. Senate Foreign Relations Committee Chairman Frank Church articulated the following as guidelines for the future: (1) consultation required giving Congress an opportunity to participate in the decision making process, not just informing Congress that an operation was underway; and (2) the judgment could not be made unilaterally but should be made by the President and Congress.56 These guidelines for the President when considering military action were intended to increase Congress’s role in the decision-making process.
The Iranian hostage crisis showcased one the main problems with the Resolution. Military action to rescue the hostages depended on the element of surprise. President Carter later argued that formally reporting to Congress under Section 4(a)(1) would have placed the mission in danger.57 The question then is whether the reporting requirement of the Resolution is prudent when engaging in certain military actions? President Carter decided not to fully report to Congress until after the rescue attempt had failed.58 Relying on the need for secrecy, Presidents can bypass Section 4(a)(1) and not report to Congress until after operations have ended. For this reason, the Resolution is not practical and should not be applied uniformly to all situations.
B. President Reagan’s actions in response to Central American military operations.
After the Vietnam War, American military forces have been involved in operations across the globe. During the 1980’s, U.S. forces were sent to Central America to protect American interests and to preserve democracy. Military action in El Salvador and Honduras brought new questions as to the reporting requirements under the War Powers Resolution.
One of the first cases to generate substantial controversy for failure to report it under the War Powers Resolution was the dispatch of U.S. military advisers to El Salvador. In February 1981, the Department of State announced the dispatch of 20 additional military advisers to El Salvador to aid its government against guerilla warfare. There were already 19 military advisers in El Salvador sent by the Carter Administration. The Reagan Administration said the insurgents were organized and armed by Soviet bloc countries, particularly Cuba. By March 14, the Administration had authorized a total of 54 advisers, including experts in combat training.59
The President did not report the situation under the War Powers Resolution. A State Department memorandum said a report was not required because the U.S. personnel were not being introduced into hostilities or situations of imminent hostilities. The memorandum asserted that if a change in circumstances occurred that raised the prospect of imminent hostilities, the President would comply with the Resolution.60 On May 1, 1981, eleven members of Congress challenged the President’s action by filing suit on grounds that he had violated the Constitution and the War Powers Resolution by sending the advisers to El Salvador.61 On October 4, 1982, U.S. District Court Judge Joyce Hens Green dismissed the suit. She ruled that Congress, not the court, must resolve the question of whether the U.S. forces in El Salvador were involved in a hostile or potentially hostile situation.
While there might be situations in which a court could conclude that U.S. forces were involved in hostilities, she ruled, the “subtleties of fact-finding in this situation should be left to the political branches.” She noted that Congress had taken no action to show it believed the President’s decision was subject to the War Powers Resolution.62 For the first time, a Federal judge found that it was up to the political branches of the government, not the courts, to decide differences as to the Resolution.
Tensions between the President and Congress increased over President Reagan’s use of military troops in Honduras. In 1983, President Reagan announced “joint training exercises” planned for Central America and the Caribbean. The first contingent of U.S. troops landed in Honduras on August 8, 1983, and the series of ground and ocean exercises continued for several years, involving thousands of ground troops plus warships and fighter planes.63 The President did not report the exercises under the War Powers Resolution. He characterized the maneuvers as routine and said the United States had regularly conducted joint exercises with Latin American countries since 1965.64 Some Members of Congress, on the other hand, contended that the exercises were part of a policy to support the rebels or “contras” fighting the Sandinista Government of Nicaragua, threatening that government, and increased the possibility of U.S. military involvement in hostilities in Central America.<65 This dispute did not reach the courts because peace agreements in the region eliminated the need for further U.S. involvement. However, it is important to note that the President, once again, did not report to Congress military action because he reclassified the action as something other than hostilities.
The Honduras and El Salvador actions are examples that qualify for reporting under Section 4(a)(1), but were not. Further, in El Salvador, several members of Congress tried to use the judicial system to force the President to adhere to the mandates of the Resolution. Both examples involved a limited number of U.S. forces. Subsequent examples show how Presidents have dealt with larger military operations.
C. President Bush’s reporting of military action in Panama and Iraq.
On December 20, 1989, President Bush ordered 14,000 U.S. military troops to Panama for combat, in addition to 13,000 already present. On December 21, he reported to Congress under the War Powers Resolution but without citing section 4(a)(1). His stated objectives were to protect the 35,000 American citizens in Panama, restore the democratic process, preserve the integrity of the Panama Canal treaties, and apprehend General Manuel Noriega, who had been accused of massive electoral fraud in the Panamanian elections and had been indicted on drug trafficking charges by two U.S. Federal courts.66
The operation proceeded swiftly and General Noriega surrendered to U.S. military authorities on January 3. President Bush said the objectives had been met, and U.S. forces were gradually withdrawn. By February 13, all combat forces deployed for the invasion had been withdrawn, leaving the strength just under the 13,597 forces stationed in Panama prior to the invasion.67 The President did not consult with Congressional leaders before his decision, although he did notify them a few hours in advance of the invasion.68 The Senate adopted an amendment to the Defense Appropriation Bill supporting the President’s use of appropriate diplomatic, economic, and military options “to restore constitutional government to Panama and to remove General Noriega from his illegal control of the Republic of Panama”, but the Senate expressly defeated an amendment authorizing the President to use U.S. military force to secure the removal of General Noriega.69
The Panama action did not raise much discussion in Congress about the War Powers Resolution in part because Congress was out of session when the deployment commenced. By the time Congress reconvened on January 23, 1990, the operation was essentially over and it appeared likely that the additional combat forces would be out of Panama within 60 days of their deployment. Moreover, the President’s action in Panama was very popular with the American public and supported by most Members of Congress because of the actions of General Noriega.70 After it was over, on February 7, 1990, the House passed H.Con.Res. 262, which stated that the President had acted “decisively and appropriately in ordering United States forces to intervene in Panama.”71 Less than a year later, President Bush would once again have the opportunity to report major U.S. military action when Iraq invaded Kuwait.
A week after the Iraqi invasion of Kuwait, on August 9, 1990, President George H. W. Bush reported to Congress “consistent with the War Powers Resolution” that he had deployed U.S. armed forces to the region prepared to take action with others to deter Iraqi aggression. He did not cite section 4(a)(1) and specifically stated, “I do not believe involvement in hostilities is imminent.”72 As the situation progressed, President Bush reported to Congress, but again failed to cite Section 4(a)(1), even though 350,000 U.S. troops were deployed to the area. In response, Representative Ron Dellums and 44 other Democratic Members of Congress sought a judicial order enjoining the President from offensive military operations in connection with Operation Desert Shield unless he consulted with and obtained an authorization from Congress.73
On December 13, 1990, Judge Harold Greene of the United States District Court for the District of Columbia denied the injunction, holding that the controversy was not ripe for judicial resolution because a majority of Congress had not sought relief and the executive branch had not shown sufficient commitment to a definitive course of action.74 However, throughout his opinion Judge Greene rejected the Administration’s arguments supporting full Presidential war powers. Further judicial action to force compliance with the Resolution became moot because on January 12, 1991, when both houses of Congress passed the “Authorization for Use of Military Force Against Iraq Resolution.”75 Section 2(a) of the Act authorized the President to use U.S. Armed Forces pursuant to U.N. Security Council Resolution 678 to achieve implementation of the earlier Security Council resolutions.76
The President repeatedly stated that he did not need Congressional authorization to use military force against Iraq because the U.N. Security Council Resolution 678 authorized force to remove Iraq from Kuwait.77 Operation Desert Storm was America’s largest military action since the end of the Vietnam War. Although Congress enacted legislation authorizing the use of American troops against Iraq, the War Powers Resolution did not force the President into any particular course of action. In fact, President Bush relied on U.N. Resolutions for the war, not Congressional authorization. In Panama and Iraq, President Bush once again continued a tradition of partial compliance with the Resolution. His actions in both instances revealed the limitations of the Resolution. Court action once again proved a futile avenue for enforcing the Resolution and with a lack of public opposition to military action, cutting off funds was not feasible.
D. The War on Terror and the War Powers Resolution
The terrorist attacks of September 11, 2001 on the United States brought new challenges in the application of the War Powers Resolution. Following the attacks, Congress enacted the “Authorization for Use of Military Force,” passed by Congress on September 14, 2001.78 The joint resolution authorized the President:
“to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”79
The joint resolution further stated that Congress declared that this resolution was intended to “constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.” Finally, the joint resolution also stated “nothing in this resolution supercedes any requirement of the War Powers Resolution.”80
A notable feature of the Resolution Authorizing Military Force is that unlike all other legislation authorizing the use of military force by the President, this resolution authorized military force against “organizations and persons” linked to the September 11, 2001 attacks on the United States. Past authorizations of the use of force have permitted action against unnamed nations in specific regions of the world or against named individual nations. This authorization of military action against “organizations or persons” is unprecedented in American history, with the scope of its reach yet to be determined. The authorization of use of force against unnamed nations is more consistent with some previous instances where authority was given to act against unnamed states as appropriate when they became aggressors or took military action against the United States or its citizens.
Thus, in light of the September 11, 2001 terrorist attacks against United States territory and citizens, the President and the Congress, after consultation, agreed to a course of legislative action that did not invoke the War Powers Resolution itself, but substituted a specific authorization measure, the “Authorization for Use of Military Force.”81 The language of the War Powers Resolution itself contemplates pursuit of such an action. As of the end of October 2001, President George W. Bush had chosen to state in his reports to Congress that the military actions he had taken relating to the terrorists attacks were “consistent with” both the War Powers Resolution and the “Authorization for Use of Military Force.”
President Bush’s actions followed the practice of his White House predecessors in not formally citing the language of the War Powers Resolution in Section 4(a)(1) that would trigger a withdrawal timetable for military forces. Congress for its part in the “Authorization for Use of Military Force,” stated that this legislation constituted “specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.”82 It also noted that “nothing” in the “Authorization for Use of Military Force” supercedes any requirement of the War Powers Resolution.83 The President and the Congress, in sum, maintained their respective positions on the constitutionality of the War Powers Resolution and the responsibilities of the President under it, while finding a legislative vehicle in which both branches could unite to support the President’s response to the terrorist attacks on the United States.
Following military action in Afghanistan, President Bush sought authorization for military action in Iraq. In October, 2002, Congress enacted the “Authorization for Use of Military Force against Iraq Resolution of 2002.”84 The central element of the act is the authorization for the President to use the armed forces of the United States “as he determines to be necessary and appropriate in order to (1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq.”85
While President Bush noted he sought a “resolution of support” from Congress to use force against Iraq and appreciated receiving that support, he also stated that:
“…my request for it did not, and my signing this resolution does not, constitute any change in the long-standing positions of the executive branch on either the President’s constitutional authority to use force to deter, prevent, or respond to aggression or other threats to U.S. interests or on the constitutionality of the War Powers Resolution.”86
The President once again marginalized the War Powers Resolution. Obtaining Congressional authorization for war was explained simply as support for a chosen course of action. President Bush’s treatment of the Resolution when conducting military action in Afghanistan and Iraq exemplified how Presidents view the law and the extent to which they have downplayed its obligatory provisions.
The 2001 “Authorization for Use of Military Force” did not include an expiration date, which granted the President authority to conduct military action against terrorists, and those who support terrorists. With this open-ended authorization, the President’s power to wage military action is now even greater than it was before. This new broad authorization for military action, coupled with a long history of evasiveness, has left unchanged the President’s powers over foreign affairs and military action.
VI. Conclusion
After almost 40 years since its enactment, the controversy over the War Powers Resolution continues over its effectiveness and appropriateness as a system for maintaining a Congressional role in the use of armed forces in conflict. One view is that the War Powers Resolution is basically sound and does not need amendments.87 Those who hold this opinion believe the Resolution brought about better communication between the two branches of government in times of crisis, and has given Congress a vehicle by which it can act when a majority of Members wish to do so. The Resolution served as a restraint on the use of armed forces by the President in some cases because of awareness that certain actions might invoke its provisions. For example, the threat of invoking the War Powers Resolution may have been helpful in getting U.S. forces out of Grenada, in keeping the number of military advisers in El Salvador limited to 55, and in prodding Congress to take a stand on authorizing the war against Iraq.
A contrary view is that the War Powers Resolution is an inappropriate instrument that restricts the President’s effectiveness in foreign policy and should be repealed.88 Those with this perspective believe that the basic premise of the War Powers Resolution is wrong because in it, Congress attempts to control of the deployment of U.S. military forces, encroaching on the responsibility of the President.<89 Supporters of repeal contend that the President needs more flexibility in the conduct of foreign policy and that the time limitations in the War Powers Resolution are unconstitutional and impractical. Some holding this view contend that Congress has always had the power, through appropriations and general lawmaking, to inquire into, support, limit, or prohibit specific uses of U.S. Armed Forces if there is majority support. The War Powers Resolution does not fundamentally change this equation, it is argued, but it complicates action, misleads military opponents, and diverts attention from key policy questions.
A third view is that the War Powers Resolution has not been adequate to accomplish its objectives and needs to be strengthened or reshaped.90 Proponents of this view assert that Presidents have continued to introduce U.S. armed forces into hostilities without consulting Congress and without Congressional authorization. Presidents have cited section 4(a)(1) on only one occasion — Mayaguez — and by the time the action was reported, it was virtually over. Holders of this third view propose various amendments to the War Powers Resolution. These include returning to the version originally passed by the Senate, establishing a Congressional consultation group, adding a cutoff of funds, and providing for judicial review.
So what does the future hold for the War Powers Resolution? As the evidence in this paper shows, the Resolution, specifically Sections 4(a)(1) and 5(b), has not held up as well as its authors had hoped. However, Congress has been unwilling, or unable, to force the President to comply. Thus, the effectiveness of the Resolution has been minimal such as Presidents seeking Congressional authorization when initiating or continuing large-scale military involvement. Although full compliance has not taken place, the President’s decision-making process at least considers what the War Power Resolution requires.
The absence of full Presidential compliance does not make the War Powers Resolution a relic of the Vietnam War that should be repealed. Congress has made some headway in checking the President’s war-making power by forcing unwilling cooperation with the reporting requirements of the Resolution. Although it’s unclear what remedies are available to the Congress if the President openly defies Sections 4(a)(1) and 5(b), neither party wants to find out. This unclear and unsettled area of Constitutional law has forced Congress to accept partial compliance with the Resolution, and has forced the President to consult with Congress when he would not have otherwise.
The War Powers Resolution is Congress’s attempt at remedying a perceived wrong. Repealing the law would only serve to increase the President’s power by showing that he has supreme and unbridled power over foreign affairs and over the U.S. military. For this reason, repealing the Resolution is not a feasible alternative.
Since 1973 the War Powers Resolution has attempted to limit the President’s power to wage war. Although the Act’s mandates have not been fully complied with, the legislation has proved workable. Presidents have obtained Congressional approval for military action when engaging in large-scale operations and Congress has not challenged the President’s authority as Commander-in-Chief either in court or through impeachment procedures. The current status of the law appears to have created a balance between Congress’s desire to be more involved in how the military is used and the President’s traditional role as head of the Armed Forces.
Congress has failed to take further action to force compliance with the Resolution. This failure to act has weakened the Resolution to the levels where it currently stands. Amending the Resolution to incorporate stricter standards is a useless exercise because the President, as experience has shown, will simply not comply if he feels that his role as Commander-in-Chief is being curtailed. Experience has also shown that Congress will not take further steps to force compliance such as cutting of funds for military activities, pursuing legal action, or resorting to impeachment.
For nearly 40 years the War Powers Resolution has been at the forefront of Congress’s attempt to limit the President’s power to wage war. The Resolution is imperfect because it has not achieved its stated goals, but other alternatives are simply not an option. For the foreseeable future the Resolution must remain in place. All other alternatives would have a detrimental impact on the balance of power between the Executive and Legislative branches. The Resolution in its current form is the best option for Congress.
