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Presidential Accountability and the War Powers Resolution of 1973: Part 1

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By Dr. Stephen Schwalbe
Faculty Member, Public Administration at American Public University

Author’s note: The following blog post is part 1 of a two-part series.

Many people believe that there is a balance of power to some degree between Congress and the president when it comes to deploying military forces abroad. They find it disconcerting when it becomes apparent that there are few, if any, checks on a president regarding this issue.

There are legal requirements set in place to ensure that the president gets approval from Congress before sending military forces overseas. These requirements are described in the U.S. Constitution and the War Powers Resolution of 1973.

U.S. Constitution Says Only Congress Has the Power to Declare War

Article I, Section 8 of the U.S. Constitution states that only Congress has the power to declare war. A declaration of war authorizes a president to call up reserve military units, to suspend certain budget rules for Congress, to control selected export activities, and to detain “alien enemies,” among many others.1 Since these changes can be fairly disruptive to the normal functioning of the government and the daily lives of American citizens, Congress has been reluctant to declare war since 1947 despite witnessing many major conflicts.

Article II, Section 2 of the Constitution declares that the President is Commander in Chief (CINC) of the Armed Forces. Over the decades, presidents expanded the concept of CINC to mean that they can deploy America’s armed forces without the prior approval of anyone, including Congress.

President Nixon inherited a full-fledged civil war in Vietnam from Lyndon Johnson when he took over the White House in 1969. Nixon first tried to find a way to end the U.S. involvement in the war by enabling South Vietnam to continue fighting without needing U.S. military forces on the ground.

To optimize the South’s chances for success, Nixon directed the military to cut the North Vietnamese Army and communist-guerrilla supply routes along the Ho Chi Minh Trail, which crossed into Cambodia and Laos. He took this action without notifying Congress.

In early 1969, the U.S. Air Force bombed communist bases in Cambodia. The bombing of Cambodia and Laos eventually became public knowledge.

In 1971, the “Pentagon Papers” were leaked to the New York Times. This top-secret history of U.S. involvement in Vietnam detailed a series of public deceptions from the U.S. government. Once Congress became aware of the situation in southeast Asia, it realized that the Constitution’s intent regarding the separation of powers in the federal government was being trampled by U.S. leaders regarding the use of military force abroad.

Passing of 1973 War Powers Resolution Law Required President to Notify Congress of Military Force

In summer 1973, Congress passed the War Powers Resolution. The Resolution, also known as Public Law 93-148, became law on November 7, 1973 after both chambers of Congress overrode President Nixon’s veto.

The Resolution officially granted the president authorization to deploy combat forces overseas, but there were many restrictions in the Resolution that presidents found unreasonable:

  • The president must consult with Congress before deploying armed forces abroad.
  • The president must provide detailed, written notification to the Speaker of the House and the President pro tempore of the Senate within 48 hours of deploying armed forces abroad.
  • All armed forces must be withdrawn within 60 days, with the possibility of a 30-day extension, if there is no declaration of war or a Congressional joint resolution to continue military operations.

Presidential Conflicts with the Resolution            

Beginning with Nixon, most presidents found these requirements unacceptable. They believed that it infringed on their constitutional obligations as president and chose to report to Congress in a manner that was “consistent with” the Resolution rather than “pursuant to.” All presidents following Nixon have essentially ignored the Resolution, except when it was politically expedient for them not to do so.2

Presidents have submitted a total of 136 reports to Congress consistent with but not pursuant to the Resolution.3 However, there have been other occasions where no report was provided to Congress regarding American combat forces deployed to conflicts overseas. These events included the use of armed forces in Grenada, Panama, Bosnia, Kosovo and Libya.4

Reagan and Both Bushes Delayed Reporting to Congress Before Deploying Forces

In 1982, President Ronald Reagan announced he was sending a small contingent of Marines to Lebanon as part of a multinational peacekeeping force. After more than a month, Reagan finally notified Congress. Reagan did not cite the War Powers Resolution as justification since the forces were not there “in a combat role.” In fact, this neglect of Congressional notification happened on two separate occasions in 1982.

In September 1983, Congressional leaders and Reagan agreed on a compromise regarding the deployment of Marines to Lebanon and the War Powers Resolution. The Multinational Force in Lebanon Resolution became the first law passed and signed in accordance with the War Powers Resolution.5

On August 2, 1990, the Iraqi army invaded Kuwait and seized its oil fields. A week later, President George H.W. Bush reported to Congress “consistent” with the War Powers Resolution that he deployed U.S. combat forces to the region. Congress subsequently passed the Authorization for Use of Military Force Against Iraq Resolution in January 1991. Following this, President Bush again reported to Congress consistent with the War Powers Resolution that he had directed U.S. forces to commence military operations against Iraq (known as Operation Desert Storm).6

On September 11, 2001, terrorists hijacked four U.S. commercial airliners and crashed them into the World Trade Center in New York City, the Pentagon in Washington, D.C., and in a farmer’s field near Pittsburgh, Pennsylvania. A week later, President George W. Bush signed into law P.L. 107-40, the Authorization for Use of Military Force. As was the case with his father, President Bush did this consistent with the War Powers Resolution and not pursuant to its directives.

Unlike previous legislation authorizing military force by a president, this law authorized military action against not only countries, but also against organizations and people linked to the terrorist attacks against the U.S. This law is still being used to justify U.S. current military actions overseas.7

On October 16, 2002, President Bush signed into law the Authorization for Use of Military Force against Iraq Resolution when Iraq did not comply with various United Nations Security Council resolutions regarding weapons of mass destruction (WMD). President Bush authorized the use of U.S. military forces in Kuwait and Saudi Arabia in 2003. He did this consistent with and not pursuant to the War Powers Resolution.8

Other Presidents Ignore Resolution’s Regulations             

In history, there are numerous occasions where presidents authorized the use of military force abroad and did not report to Congress in any manner. This includes the U.S. invasion of Grenada in 1983, the air strikes on Bosnia in 1994-95 to end ethnic cleansing, and the military support to the NATO attack in Libya to depose Muammar Gadhafi in 2011.

When a U.S. president chooses to ignore the Resolution’s demand for accountability prior to sending armed forces abroad, Congress has different options for enforcing presidential compliance. These options will be discussed in part 2 of this blog post.

References

1Jennifer K. Elsea and Matthew C. Weed. (April 2014). “Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications.” Congressional Research Service, 7-5700, RL31133, pp. 42-44.

2Richard F. Grimmett. (September 2012). “War Powers Resolution: Presidential Compliance.” Congressional Research Service, 7-5700, RL33532, p. 2.

3Except one which was pursuant to the Resolution; the Mayaguez incident in May 1975 which cited Resolution Section 4(a)(1), and specifically stated that forces had been introduced into hostilities or imminent danger.

4Richard F. Grimmett. (September 2012). “War Powers Resolution: Presidential Compliance.” Congressional Research Service, 7-5700, RL33532, Summary.

5Jennifer K. Elsea and Matthew C. Weed. (April 2014). “Declarations of War and “Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications.” Congressional Research Service, 7-5700, RL31133, pp. 12-13.

6Ibid., pp. 12-13.

7Jennifer K. Elsea and Matthew C. Weed. (April 2014). “Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications.” Congressional Research Service, 7-5700, RL31133, pp. 14-15.

8Richard F. Grimmett. (September 2012). “War Powers Resolution: Presidential Compliance.” Congressional Research Service, 7-5700, RL33532, p. 8.

About the Author

Dr. Stephen Schwalbe is an associate professor at American Public University. He is also an adjunct professor at Columbia College in political science and public administration. Stephen received a Ph.D. in Public Administration and Public Policy from Auburn University in 2006.

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