By Cliff Montgomery – Dec. 31st, 2018
In 1973, The War Powers Resolution was enacted as a means of providing an essential check on the president’s power to send U.S. troops into combat. The Resolution gives Congress the power to question and potentially remove U.S. Armed Forces from military engagements not authorized by Congress.
The study adds that, most recently, “the War Powers Resolution and related legislation” has given Congress the authority to question “U.S. military operations related to the joint counter-Houthi campaign being conducted by armed forces of the Kingdom of Saudi Arabia (Saudi Arabia, or KSA) and the United Arab Emirates (UAE) in Yemen.”
Perhaps because of this powerful oversight, the law has “been deemed unconstitutional by every President since the law’s enactment in 1973,” according to a recent report on the subject from the Congressional Research Service (CRS).
Below, the American Spark quotes the CRS report’s summary:
“Under the Constitution, the war powers are divided between Congress and the President. Among other relevant grants, Congress has the power to declare war and raise and support the armed forces (Article I, Section 8), while the President is Commander in Chief (Article II, Section 2).
“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.
“Congressional concern about presidential use of armed forces without congressional authorization intensified after the Korean conflict. During the Vietnam War, Congress searched for a way to assert authority to decide when the United States should become involved in a war or the armed forces be utilized in circumstances that might lead to hostilities.
“On November 7, 1973, it passed the War Powers Resolution [Public Law (P.L.) 93-148] over the veto of President Nixon.
“The main purpose of the Resolution was to establish procedures for both branches to share in decisions that might get the United States involved in war. The drafters sought to circumscribe the President’s authority to use armed forces abroad in hostilities or potential hostilities without a declaration of war or other congressional authorization, yet provide enough flexibility to permit him to respond to attack or other emergencies.
“The record of the War Powers Resolution since its enactment has been mixed, and after 40 years it remains controversial.
“Some Members of Congress believe the Resolution has on some occasions served as a restraint on the use of armed forces by Presidents, provided a mode of communication, and given Congress a vehicle for asserting its war powers.
“Others have sought to amend the Resolution because they believe it has failed to assure a congressional voice in committing U.S. troops to potential conflicts abroad.
“[Yet] others in Congress, along with executive branch officials, contend that the President needs more flexibility in the conduct of foreign policy and that the time limitation in the War Powers Resolution is unconstitutional and impractical. Some have [even] argued for its repeal.
“This report examines the provisions of the War Powers Resolution, actual experience in its use from its enactment in 1973 through March 2015, and proposed amendments to it. . . .
“On June 7, 1995, the House defeated, by a vote of 217-201, an amendment to repeal the central features of the War Powers Resolution that have been deemed unconstitutional by every President since the law’s enactment in 1973. . . .
“Section 4(a)(1) [of the Resolution] requires the President to report to Congress any introduction of U.S. forces into hostilities or imminent hostilities. When such a report is submitted, or is required to be submitted, Section 5(b) requires that the use of forces must be terminated within 60 to 90 days unless Congress authorizes such use or extends the time period. Section 3 requires that the ‘President in every possible instance shall consult with Congress before introducing’ U.S. Armed Forces into hostilities or imminent hostilities.
“From 1975 through March 2017, Presidents have submitted 168 reports as the result of the War Powers Resolution, but only one, the 1975 Mayaguez seizure, cited Section 4(a)(1), which triggers the 60-day withdrawal requirement, and in this case the military action was completed and U.S. armed forces had disengaged from the area of conflict when the report was made.
“The reports submitted by the President since enactment of the War Powers Resolution cover a range of military activities, from embassy evacuations to full-scale combat military operations, such as the Persian Gulf conflict, and the 2003 war with Iraq, the intervention in Kosovo, and the anti-terrorism actions in Afghanistan.
“In some instances, U.S. Armed Forces have been used in hostile situations without formal reports to Congress under the War Powers Resolution. On one occasion, Congress exercised its authority to determine that the requirements of Section 4(a)(1) became operative on August 29, 1983, through passage of the Multi-national Force in Lebanon Resolution.
“In 1991 and 2002, Congress authorized, by law, the use of military force against Iraq. In several instances [neither] the President, Congress, or the courts has been willing to initiate the procedures of or enforce the directives in the War Powers Resolution.
“In the 115th Congress, U.S. military operations related to the joint counter-Houthi campaign being conducted by armed forces of the Kingdom of Saudi Arabia (Saudi Arabia, or KSA) and the United Arab Emirates (UAE) in Yemen have spurred congressional legislative action in both Houses of Congress, taken pursuant to provisions of the War Powers Resolution and related legislation.
“The Senate on November 28, 2018, voted 63-37 in favor of a motion to discharge S.J. Res. 54, a joint resolution to ‘direct the removal of United States Armed Forces from hostilities in the Republic of Yemen that have not been authorized by Congress,’ from the Senate Foreign Relations Committee, [and thus] clearing the way for debate on the measure in the Senate.”
