By Dr. Stephen Schwalbe
Faculty Member, Public Administration at American Public University
Author’s note: This blog post is part 2 of a two-part series. Read part 1.
The War Powers Resolution of 1973 requires a president to consult with Congress prior to deploying armed forces abroad or notify Congress within 48 hours of deploying forces. But what happens when a president delays or ignores this law? What can Congress do?
Three Ways Congress May Hold Presidents Accountable for Their Actions
There are no enforcement mechanisms written into the Resolution itself to compel presidents to adhere to its provisions, so Congress only has a few options available. These options include withholding funding, impeachment and judicial review.
- Congress Could Withhold Funding from the President
Congress could decide not to fund unauthorized combat missions. But since the Vietnam conflict, Congress has not withheld funding for any U.S. military forces in combat abroad. Members of Congress are not willing to risk their political careers by cutting off support for Americans fighting in a conflict overseas. According to a Gallup poll, American public opinion ranks the military as #1 and Congress as last for several years now.
Budgeting for any federal department is done annually. Hence, cutting funding for a military operation within the Department of Defense (DoD) could take some time to take effect. All budget bills still need to be approved by the president to become law. It is highly unlikely that any president would approve legislation to cut military funding to military forces that he ordered into combat.
If a president vetoed such a bill, then Congress would need to vote to override it. This event rarely occurs and has not happened during President Obama’s administration.1
- Congress Could Remove the President from Office
The next course of action Congress has is to impeach the president. To date, only two presidents have been impeached by the House of Representatives (i.e., Andrew Johnson and Bill Clinton). Neither president was convicted and removed from office by the Senate.
Given that this course of action has been available since the Resolution went into effect in 1973, Congress has yet to pursue it regarding the president’s use of military force abroad. The ambiguous nature of the War Powers Resolution itself and the turmoil throughout the government and country would be greatly affected by an impeachment, so this course of action continues to be unlikely.
- Congress Could Take President to Court for Judicial Review
The final course of action is to take the president to court and have the judicial branch of the federal government resolve the standoff. Over the years, many members of Congress pursued this course of action in a federal district court.
Historically, federal courts have been reluctant to get involved in matters regarding foreign affairs. They tend to favor the executive branch in these cases.
The judicial branch prefers that the president and Congress do everything possible to resolve any issues between them before making such appeals. Actions would include passing laws or even amending the Constitution.
How Does Congress Address Presidential Accountability?
Since the War Powers Resolution was enacted in 1973, members of Congress have sought redress from presidential abuse in district courts a total of eight times. They have lost every case, including appeals to appellate courts. The Supreme Court has refused to adjudicate any of these cases. The court case losses are primarily due to:
- The courts claiming they are not the best venue to decide these political issues.
- The members of Congress did not have any legal standing in the case because they did not have sufficient connection to and harm from the president’s inaction.
- The members of Congress represented just themselves and not all of Congress.
- The courts decided that the claim is based on future events that may or may not happen as anticipated.
- The military action overseas ended, leaving the case moot.2
The reviewing courts normally found that the Resolution cases brought before it by members of Congress appeared more to be policy issues than legal issues. The Resolution is vague about what constitutes “hostilities” and does not accommodate the realities of international conflict. As a result, cases were dismissed to avoid the situation of inserting judges into political disputes between the president and Congress.
Should the War Powers Resolution Be Repealed?
Congress could repeal the Resolution and has tried that a few times. The first attempt was by Senator Barry Goldwater in 1983 with Senate Bill 2030. In 1987, Representative Robert Dornan introduced bill House Resolution 2525. In 1995, there were bills offered in both the Senate (Robert Dole introduced Senate Bill 5) and the House (Henry Hyde introduced House Resolution 1561).3 Hyde proposed an amendment to the Foreign Assistance and State Department Authorization Act for FY1996-97 to repeal the Resolution. It failed by a vote of 217-201.4
Another option would be for Congress to rewrite the Resolution and incorporate the lessons learned over the years to make it more effective going forward. Attempts at rewriting the Resolution have occurred twice. At the University of Virginia’s Miller Center for Public Affairs, a National War Powers Commission was created in 2008. In 2009, the commission presented a proposed War Powers Consultation Act to replace the War Powers Resolution to the Senate. The Act did not go anywhere.
In January 2014, Senators John McCain (R-AZ) and Tim Kaine (D-VA) introduced bipartisan legislation to Congress that closely mirrored the War Powers Consultation Act of 2009. The proposed legislation would first repeal the War Powers Resolution of 1973. Next, it would require the president to consult with Congress before deploying U.S. military forces into a “significant armed conflict” or be engaged in combat operations over seven days. It would create a new permanent Joint Congressional Consultation Committee for this purpose.5
The bipartisan legislation from McCain and Kaine would require that all members of Congress vote up or down on any significant armed conflict within 30 days. In the Senate, the bill was S.1939 and in the House it was H.R. 5416. Neither bill received a floor vote and this effort failed to pass Congress.6,7
Ultimately, Control over Armed Forces Depends upon Presidential Motivations
Despite protestations against the War Powers Resolution as being unconstitutional, it is still the only law that specifically authorizes a president to deploy military forces into combat abroad. This authority is not specified in the Constitution, only implied.
No president wants to see this authority rescinded or voided. As there is no enforcement mechanism in the 1973 Resolution, presidents can continue to ignore it as necessary or use it when politically expedient. The bottom line is that no president would likely be motivated to see the status quo changed.
Future Recommendations for the War Powers Resolution
All of the viable options to modify or invalidate the War Powers Resolution of 1973 have been attempted, to no avail. Members of Congress have taken various presidents of both political parties to federal court, only to lose every case for a variety of reasons. The primary underlying reason is that the judicial branch does not want to get in the middle of a political issue between the other two branches of government.
Members of Congress have even tried many times to repeal the Resolution, but were not successful. The majority of members apparently prefer to replace the Resolution than eliminate it outright, which would result in having no controls in place.
Members of Congress have even tried to rewrite the Resolution, but could not get either chamber of Congress to vote on a bill. Even if Congress could pass a new and improved version of the Resolution, it is highly unlikely it could override a presidential veto, as it did in 1973.
Members of Congress could draft an amendment to the Constitution to clarify the role of both the legislative and executive branches of the federal government. But it is highly unlikely that Congress could pass a constitutional amendment to do so. It would take three-quarters of the 50 state legislatures to pass a bill supporting this amendment. It does not seem realistic to expect that this course of action could solve the ongoing impasse.
No president is willing to do anything regarding the Resolution. What would be the motivation? Maintaining the status quo has so far proved more useful for presidents.
The way forward seems clear regarding the War Powers Resolution of 1973: do nothing. It is time for members of Congress to reference the War Powers Resolution of 1973 in a bipartisan manner to persuade (not compel) a president to negotiate with it regarding a deployment of military force abroad. A classic example was President George W. Bush seeking and receiving congressional authorization to launch attacks against both Afghanistan (2001) and Iraq (2003).
In the end, the War Powers Resolution of 1973 has proved itself useful as a political tool for both Congress and the president. However, we do not need any more partisan court cases about the Resolution (normally conducted for media exposure); any more commissions such as the National War Powers Commission; or any more congressional bills to repeal or modify it. The time and money would be better spent supporting our armed forces instead.
1Mitchel A. Sollenberger. (February 2004). “The Presidential Veto and Congressional Procedure.” Congressional Research Service, RS21750, p. 2.
2Michael John Garcia. (February 2012). “War Powers Litigation Initiated by Members of Congress Since the Enactment of the War Powers Resolution.” Congressional Research Service, 7-5700, RL30352, Summary.
3Matthew C. Weed. (April 2015). “The War Powers Resolution: Concepts and Practice.” Congressional Research Service, 7-5700, R42699, p. 55.
4Richard F. Grimmett. (September 2012). “War Powers Resolution: Presidential Compliance.” Congressional Research Service, 7-5700, RL33532, p. 24.
5This idea of a special consultative group within Congress actually originated in the late 1980s. Senators Byrd, Nunn, Warner and Mitchell introduced Senate Joint Resolution 323 in 1988, and Senate Bill 2 in 1989, to establish a permanent consultation group of 18 members, consisting of the ranking and minority members of the Committees on Foreign Relations, Armed Services and Intelligence. In October 1993, Representative Hamilton introduced House Resolution 3405 to establish a consultative group equivalent to the National Security Council. No action was taken on any of these congressional proposals. See Richard F. Grimmett. (September 2012). “War Powers Resolution: Presidential Compliance.” Congressional Research Service, 7-5700, RL33532, p. 24.
6http://millercenter.org/policy/commissions/warpowers
7https://www.govtrack.us/congress/bills/113/s1939
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.