Today in 1973: The War Powers Resolution is enacted over President Nixon’s veto

November 7, 2014

Today in Legal HistoryUnder the U.S. Constitution (specifically, Article One, Section Eight), Congress has the sole power to declare war.  Congress has not specifically invoked this power since it declared war on Bulgaria, Hungary, and Romania in three separate acts on June 5, 1942.

If you’re at all familiar with U.S. history of the past 70 years, you’d know that since the end of World War II, the U.S. military was more involved on the international stage than it had been in nearly any other point in history.

Clearly, then, the military has become involved in numerous conflicts around the globe without specific declarations of war from Congress.  Instead, Congress has given specific authorizations for the use of military force to allow the president, as commander-in-chief, to involve the U.S. in armed conflicts around the world.

However, after the Vietnam War dragged on beyond the point at which the public supported it, and after reports that President Richard Nixon was conducting covert bombing campaigns in Cambodia without informing Congress, action was taken.

And this action was the War Powers Resolution, which took effect 41 years ago today, when President Nixon’s veto was overridden by the House first, and then the Senate, on November 7, 1973.

The resolution is more commonly known as the “War Powers Act,” although the name isn’t technically correct since the actual War Powers Act was passed in 1941 and served to increase executive powers, rather than limit them.

And limit them the War Powers Resolution did: in the absence of a formal declaration of war, the law requires the president, within 48 hours of the deployment of U.S. armed forces, to furnish the Speaker of the House of Representatives and the President pro tempore of the Senate with a report that explains the circumstances requiring the intervention, the constitutional and legislative authority invoked, and the estimated scope and duration  of the involvement.

Furthermore, in the absence of specific authorization from Congress, the law imposes a 60-day time limit for the president to continue to involve troops without congressional authorization, which may only be extended for 30 additional days if the president certifies to Congress in writing that continued use of the armed forces are needed to ensure a safe withdrawal of those forces.

President Nixon attempted to veto the bill on October 24, declaring it to be “both unconstitutional and dangerous to the best interests of our Nation.”  And every president since has taken the position that the law is unconstitutional.

It has never been explicitly challenged in court, however, and every president has largely complied with it regardless of questions over its constitutionality.

That doesn’t mean that presidents haven’t been criticized by members of Congress for allegedly violating the law.  President Bill Clinton has been denounced for keeping the 1999 bombing campaign in Kosovo going for two weeks longer than the 60-day time limit.

The Clinton administration argued that since Congress had authorized funding for the operation, consent had been given.  Detractors maintain that “the War Powers Resolution specifically says that such funding does not constitute authorization.”  This is a somewhat erroneous assertion, since the law only states that congressional authorization “shall not be inferred…from any provision…contained in any appropriations act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities.”  It’s debatable whether Congress’s specifically providing funding for a particular armed conflict is specific authorization for the introduction of U.S. armed forces into that conflict.

President Barack Obama has faced similar criticism in regards to U.S. involvement in the Libyan Civil War in 2011, which, although funded by Congress, was maintained longer than the 60-day period specified in the War Powers Resolution.

The issue of a president violating the law came before the courts only once, in regards to President Clinton’s bombing campaign in Kosovo: in 2000’s Campbell v. Clinton the D.C. Circuit Court of Appeals dismissed the claim for lack of standing, finding that the claim was a non- justiciable political question.

And it remains quite unlikely that a court will intervene in a dispute between the executive and legislative branches, especially on an issue involving military use and national security.

Thus, despite all of the heralding about its major implications, the War Powers Resolution will likely remain a point of contention – albeit one of significant contention at times – between the president and Congress.  And, of course, their respective political parties.