Robbins: How the War Powers Act Works
We’re not there yet, and I hope we won’t be there. But with Belarus threatening to join Russia in its deadly assault on Ukraine, Germany rearming, and the rest of NATO nervous and restless, what if we were dragged into a war?
Well, there’s a law for that.
Under the United States Constitution, the war powers are divided.
Under Article I, Section 8, among other powers, Congress has the power to: (i) declare war; ii) raising and supporting armies; (iii) provide and maintain a navy; (iv) establish rules for the government and regulation of land and naval forces; (v) provide for the call of the militia; (vi) establish rules regarding captures on land and water; (vii) provide for the organization, arming and discipline of the militia; (viii) govern that part of the militia which may be employed in the service of the United States; ix) appoint militia officers; and (x) form the militia according to the discipline prescribed by Congress.
Article II, Section 2 states that “The President shall be the Commander-in-Chief of the Army and Navy of the United States and of the Militia of the several States, when called upon for the effective service of the United States” .
It is generally accepted that as Commander-in-Chief, the President has the power to repel attacks on the United States and makes the President responsible for the direction of the armed forces. The president has the right to sign or veto acts of Congress, such as a declaration of war, and Congress can override such presidential veto.
The power of war was intentionally divided between Congress and the executive to prevent unilateral executive action contrary to the wishes of Congress and requires a super-majority for legislative action contrary to the wishes of the President.
Checks and balances, even in the dire circumstances of war.
During the Vietnam War, the United States found itself involved for many years in a situation of war without a declaration of war. Members of Congress have worried about the erosion of Congress’s authority to decide when the United States should or should not get involved in a war or the use of armed forces that might wage one. Their concern was sparked by reports that President Nixon conducted covert bombings of Cambodia during the Vietnam War without informing Congress.
The War Powers Act (more accurately known as the War Powers Resolution) passed both the House of Representatives and the Senate, but Nixon vetoed it. By a two-thirds vote in each house, Congress overruled the veto and, on November 7, 1973, signed the joint resolution into law.
What the law seeks to accomplish is to control the power of the US President to engage the United States in armed conflict without the consent of the US Congress. It provides, in particular, that the President may only send U.S. armed forces into action overseas by congressional declaration of war, “statutory authorization,” or in the event of “a national emergency created by an attack on the United States.” States, its territories or possessions”. , or its armed forces.
The resolution requires the president to notify Congress within 48 hours of engaging the armed forces in military action and prohibits the armed forces from staying longer than 60 days, with an additional 30-day withdrawal period, without authorization of Congress for the use of military force. or a declaration of war by the United States.
This, of course, perhaps provides some leeway, especially in modern warfare where a quick and brutal resolution of armed conflict can be easily achieved.
It has been alleged that the War Powers Resolution has been violated in the past. For example, in 1999 by President Bill Clinton, during the NATO bombing of Yugoslavia. Although Congress disapproved of all of these incidents, none resulted in successful lawsuits against the president for alleged violations.
In that a rare beast?
Presidents submitted 130 reports to Congress following the war powers resolution, although only one (the 1975 Mayagüez incident) specifically stated that forces had been brought into hostilities or imminent danger .
The resolution was invoked in Lebanon in 1982 and 1983, in the Gulf War in 1991, and in Somalia in 1994. More recently, under President Clinton, presidential war powers were at issue in the former Yugoslavia, the Bosnia and Kosovo, as well as Iraq and Haiti, and under President George W. Bush, in response to the terrorist attacks on the United States after September 11, 2001. In October 2002, Congress enacted the Authorization to Use of Military Force Against Iraq which authorized President George W. Bush to use military might necessary to defend the United States against Iraq and to enforce relevant United Nations Security Council resolutions. It was noted in Libya in 2011, in Syria in 2012-217, in Yemen in 2018-2019 and in Iran in 2020.
What will be next, one wonders?
Besides unnecessary death and destruction, what will the current conflict bring? Will the role of the United States be broad or limited? Will it be over sooner or later? Are we at some point going to commit troops, even if it’s in certain limited capacities? Can we, in this politically divided nation, come together and agree on what needs to be done?
Time, I presume, will tell. With a bit of skill and luck, maybe the cooler heads will win out eventually. One thing is certain though, if the assault on Ukraine continues or worse, escalates, the days are long gone when America will stand idly by. The question is: how far will we go and, depending on the length and extent of our involvement, will Congress and the President unite or disagree on the direction, in the national interest, that we must finally take?
Rohn K. Robbins is an attorney licensed by the bars of Colorado and California who practices in the Vail Valley with the law firm of Caplan & Earnest LLC. His areas of practice include: business and commercial transactions; real estate and development; family law, custody and divorce; and civil litigation. Robbins can be reached at 970-926-4461 or [email protected]. Her novels, “How to Raise a Shark (an apocryphal tale)” and “The Stone Minder’s Daughter,” are currently available on Amazon.com — and soon, “Why I Walk So Slow.”