Final Paper - GOVT 2302

War Powers Act of 1973

The War Powers Act can trace its origins to the conflict in Viet Nam in the 1960's.  By the late 60's, many members of Congress had withdrawn what support of the war they had earlier shown.  The Congress was ruled by the Democrats, whereas there was a new Republican president, Richard Nixon.

The proper name of this Law is the War Powers Resolution.  While commonly referred to as the War Powers Act, that is actually an older law intended to define the limits of allowable trade with enemy states during time of war.

In 1973, Congress passed the War Powers Act, which was designed to restrict presidential war-making powers.  Although President Nixon vetoed the bill, his standing with Congress had been recently hurt by the Watergate scandal, and they voted to override the veto.

There are four provisions of the Act:

1. In the absence of a congressional declaration of war, the president can commit armed forces to hostilities or to "situations where imminent involvement in hostilities is clearly indicated by the circumstances" only:

• To repel an armed attack on the United States or to forestall the "direct and imminent threat of such an attack."
• To repel an armed attack against U.S. armed forces outside the United States or to forestall the threat of such attack.
• To protect and evacuate U.S. citizens and nationals in another country if their lives are threatened.

2. The president must report promptly to Congress the commitment of forces for such purposes.
3. Involvement of U.S. forces must be no longer than sixty days unless Congress authorizes their continued use by specific legislation.
4. Congress can end a presidential commitment by resolution, an action that does not require the president's signature.

The obvious potential constitutional conflict is that the Act seems to grant to Congress the ability to command troops, a power granted specifically to the president by the Constitution.  Some feel that the president is under no obligation to follow the Act, either Constitutionally or politically, or at the least that the Act will not be enough to stop a president determined to commit troops.

It seems that the executive branch as a whole agrees with the above sentiment.  Every president since its adoption into law has declared the War Powers Resolution unconstitutional.  The Supreme Court, through a tangentially related case, has seemingly struck down the 'legislative veto' embodied in Section 5(c) of the Resolution in the case INS v. Chadha (1983).  The applicability of this ruling in this particular case has not been tested, however.

 In every instance since the act was passed, the President has requested and received authorization for the use of force (though not a formal declaration of war) consistent with the provisions of the resolution. Each of the presidential reports to Congress have been carefully written to state that they are "consistent with" the War Powers Resolution rather than "pursuant to."  This clearly displays the executive stance that the Resolution is unconsitutional.

One of the main arguments against the constitutionality of the War Powers Act is that the Congress only has the power to declare (formal) war, and to fund the military forces.  The President is specifically the Commander in Chief of the Armed Forces, and should have the final say over their activities.

The act was intended to serve as a new check and balance on the power of the President to commit the United States to military action.  It has been attempted to be justified by the constitutional authority of Congress to declare war under Article One.  It usefulness is in question, however, considering both its shaky constitutionality and the fact that the legislature has continued to defer to the executive when decisions come down regarding the placement and command of troops in conflict.

Works Cited

Wikipedia, The Free Encyclopedia – War Powers Resolution.  <http://en.wikipedia.org/wiki/War_Powers_Resolution>

Politics in America textbook  pp420-421

Resolution text:  http://www.cs.indiana.edu/statecraft/warpow.html

Anti-WPR stance:  http://www.henrymarkholzer.com/articles_bush_vs_congress.shtml