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Constitutional Conflict Over American Military Forces in Combat Abroad

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By Dr. Stephen Schwalbe
Faculty Member, Political Science at American Public University
Guest Contributor

For decades, there has been a gray area between the president and Congress: the authorization to deploy American military forces in combat abroad. Looking at the history of this issue may offer insight into a path toward resolution.

When President Nixon decided to expand the Vietnam Conflict to include Cambodia and Laos in the early 1970s on his own authority, members of Congress were upset. Their recourse could have been to withhold the funding for military operations in Southeast Asia to force Nixon to cease unapproved military operations. However, this measure would surely backfire regarding the combat forces already in theater that needed to be supported.

Instead, Congress decided to craft a law that would compel the president to notify and confer with Congress when deploying combat forces overseas. The War Powers Joint Resolution was passed in 1973. When Nixon vetoed the bill as expected, Congress voted to override the veto. Since then, almost every president has deemed this law to be an infringement on the constitutional authority of the president.ISIL Obama War Authorization to Congress

The War Powers Resolution requires the president to notify Congress within 48 hours of committing armed forces overseas in combat. Then, it requires the removal of these forces after 60 days (with an additional 30-day withdrawal period) without congressional authorization or a formal declaration of war. Congress pursued this law because the Constitution is divided on who has this authority. The president is declared the commander in chief of the U.S. Armed Forces when used in conflict per Article II, Section 2. On the other hand, Congress has the power to declare war, raise and support the armed forces, and control combat funding per Article I Section 8.

The track record of presidents abiding by this 1973 resolution is poor at best. Of the approximately 250 military operations the U.S. has conducted abroad since then, presidents have submitted only 136 reports to Congress according to the War Powers Resolution; though only one cited Section 4(a)(1) after the fact, stating that forces had been deployed into combat during the Mayaguez incident in Cambodia in May 1975. That is close to a 50 percent failure-to-abide rate.

If a president decides it is in his interest to include Congress on a decision to employ combat forces overseas, as President Obama did in August 2013 regarding Syria and its use of chemical weapons, then the War Powers Resolution is useful (mainly for political cover). However, President Obama did not abide by the resolution in 2011 when he authorized the use of American military forces in Libya to support the overthrow of the Qaddafi regime.

This was similar to President George H.W. Bush asking for Congress’s authority to repel Iraq’s invasion of Kuwait in 1990, but then he did not confer with Congress when authorizing the invasion of Panama in December 1989. Even when presidents abide by the War Power Resolution, they almost always inform Congress that their actions were consistent with the resolution, not pursuant to, because they all feel it is unconstitutional. Clearly, this issue qualifies for resolution one way or the other by federal courts. And, in fact, members of Congress have taken the president to court over not abiding by the stipulations of the War Powers Resolution many times.

Although several presidents have been taken to court over this issue, the most litigated president was President Reagan. Reagan was taken to court over sending military advisors to El Salvador in 1981 (Crockett v Reagan); sending military advisors to Nicaragua (Sanchz-Espinoza v Reagan); and Naval forces into the Persian Gulf in 1987 (Lowry v Reagan). The District Circuit Court of Washington, D.C. adjudicated all of the War Powers Resolution cases. The D.C. federal judges ruled that the court could not get involved because: it was not the court’s place to resolve such issues; Congress needs to use all of its power to resolve the issue before turning to the courts; and, members of Congress lacked standing to file such a lawsuit.

Frustrated, Congress attempted to resolve this issue with the president by first attempting to repeal the 1973 resolution. In June 1995, a voted was taken in the House of Representatives (on House bill H.5667) to repeal it. It narrowly failed to pass. Then, in 2014, Senators John McCain (R-Ariz.) and Tim Kaine (D-Va.) introduced a bill in the Senate (S.1939) to replace the 1973 resolution with a more modern War Powers Consultation Act. This Act was referred to the Senate Committee on Foreign Relations. This bill was never brought to a floor vote during the 113th Congress, and it essentially died in committee.

Clearly, Congress is still frustrated that after all these years it cannot curb a president’s determination to deploy combat troops overseas. Yet, it still maintains the power to not fund such excesses of presidential power, though this would be difficult to justify to the American public as it could put deployed troops at risk. Congress also has the power to impeach and remove a president for violating the law. However, the 1973 resolution is poorly worded, not clearly delineated, and fraught with contradictions. As such, it would be difficult for any Congress to successfully impeach and convict a president using this law.

There is still one possibility to move off this stalemate – the Supreme Court. In cases involving a dispute between the president and Congress, the Supreme Court is likely to accept the case for adjudication. To date, members of Congress have sued the president in district courts, but never in the Supreme Court. No matter how the Supreme Court rules on this issue, the important thing is that the stalemate will be broken and we can move forward with a new act (such as the one proposed in the Senate) or allow the president to do what is believed to be best for the security of the country and our allies.

About the Author
Dr. Schwalbe, Program Director of Political Science at American Public University, retired from the Air Force in 2007 as a colonel after 30 years of active duty service.  He has a Bachelor of Science degree from the Air Force Academy; a Master’s degree in Public Administration from Golden Gate University; a Master’s degree from the Naval Postgraduate School; a Master’s degree from the Naval War College; and, a Ph.D. from Auburn University in Public Policy.

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