For 86 days now, 26 more than allowed for under the War Powers Act, we have been reading about and listening to war news from the Middle East. The War Powers Act (formally the War Powers Resolution) was passed by Congress in November 1973 over President Nixon’s veto in the aftermath of Vietnam. It is one of the most important and most consistently violated pieces of legislation in American constitutional history. The immediate context in 1973 was Vietnam, but the deeper context was a generation of presidential war-making without congressional declaration. First there was Korea in 1950, where Truman committed American forces without a declaration of war, calling it a “police action”. That lasted 3 years and a month. Then there was Vietnam, really started under Kennedy and then escalated massively under Johnson and Nixon once direct engagement of American troops started with the Gulf of Tonkin Resolution in 1964 and lasting almost 9 years until final troop withdrawal in 1973 and the fall of Saigon in 1975. And, of course, Congress later repealed the Gulf of Tonkin Resolution in 1971 after concluding it had been obtained through deception. And while people may think of it as part of the Vietnam War, there was the secret bombing of Cambodia (think Ho Chi Minh Trail), which Nixon had been conducting with massive bombing operations in a neutral country without congressional knowledge or authorization. That brief and violent Asian history caused Congress to conclude that the constitutional balance between executive and legislative war powers had been systematically eroded and needed statutory restoration.
What the Constitution actually says is, in a word, ambiguous. Article I gives Congress the power to declare war, raise and support armies, make rules for the military, and appropriate funds accordingly. Article II makes the President the Commander in Chief of the armed forces. The Founders clearly intended a shared war power with Congress deciding whether to go to war, and the President directing the fighting. But they left the boundary between these powers unclear, and presidents have exploited that ambiguity ever since. Only five formal declarations of war have ever been issued in American history. They were for The War of 1812, The Mexican-American War (1846), The Spanish-American War (1898), World War I (1917) and World War II (1941). Every other American military conflict; Korea, Vietnam, The Gulf War, Iraq, Afghanistan, Libya, Somalia, Syria, and dozens of smaller operations has proceeded without a formal declaration.
The War Powers Resolution has three core provisions. It requires consultation, wherein the President must consult with Congress “in every possible instance” before introducing American forces into hostilities or situations where hostilities are imminent. This requirement is vague and has been largely ignored. It requires reporting within 48 hours of committing forces to combat. It says that the President must submit a written report to Congress explaining the circumstances necessitating the action, the constitutional and legislative authority for it, and the estimated scope and duration of the conflict. As we have all heard, there is a 60-Day Clock referenced. In fact, this clock is the Act’s central mechanism to supposedly eliminate some of the inherent ambiguity. Once forces are committed to hostilities without a declaration of war, the President (who has presumably comported with the consultative, reporting and estimating requirements) has 60 days to obtain congressional authorization. If authorization is not obtained, the President has an additional 30 days to withdraw forces — a total of 90 days. Did I mention that we are at day 86 at the moment?
If Congress neither authorizes the action nor declares war within 60 days, the President must terminate the use of force. Did anyone notice that we bombed sites in Southern Iran yesterday, while we are supposedly negotiating a peace agreement…while under a cease-fire agreement?! Congress can also pass a concurrent resolution at any time ordering withdrawal without the President’s signature, meaning it cannot be vetoed. Of course, that would require Congress to be in session and not dismissed by the Speaker of the House in a rush to prevent the chalking of such a vote on the floor as frustration builds on both sides of the aisle over the ticking clock and the non-conforming administrative interpretation of the War Powers Resolution…which is basically to ignore every aspect of it in proper authoritarian manner.
Every president since Nixon, both Democrat and Republican, has complied minimally with reporting requirements while formally refusing to acknowledge the Act’s constitutionality. The standard presidential position has been that The Act unconstitutionally infringes on the President’s Commander in Chief authority, that the 60-day clock is an unconstitutional legislative veto on executive power, and that Presidents comply “consistent with” the Act rather than “pursuant to” it, which is a careful phrase that avoids acknowledging its binding force. The Supreme Court has never definitively ruled on the Act’s constitutionality. SCOTUS has repeatedly declined cases on standing and political question grounds, leaving the constitutional question unresolved.
Let’s be clear, there is a strong history of non-compliance for various and sundry reasons. The record of presidential compliance is essentially a record of creative evasion. Ford used force in the Mayaguez incident in 1975 with minimal consultation. His actions against the Khmer Rouge seizure of an American vessel lasted three days. Carter ignored the Resolution during the Iran hostage rescue attempt in 1980 and reported it after the fact (especially embarrassing given its failure). Reagan conducted the Grenada invasion in 1983, the Libya bombing in 1986, and extended American presence in Lebanon. These were all conducted with minimal congressional involvement. Reagan argued that the Act was an unconstitutional infringement throughout. Bush Senior engaged in the Gulf War in 1991 in what is the closest attempt at genuine compliance. He sought and obtained a congressional Authorization for Use of Military Force (AUMF) before the ground war, though he argued he didn’t legally need it. This set a political precedent even if it didn’t resolve the legal question. Clinton’s Bosnia and Kosovo interventions were the most direct violations. The Kosovo air campaign in 1999 extended well beyond the 60-day limit without authorization. The House actually voted on a declaration of war (which was defeated) and a resolution to authorize the bombing (a tied vote), but took no action to enforce the 60-day withdrawal requirement. Bush W obtained AUMFs for both Afghanistan in 2001 and Iraq in 2002 (very much on the back of the War Against Terror rhetoric post 9/11). Those became broad authorizations that became the legal basis for military operations in the region and billions of spending for decades. The 2001 AUMF against those responsible for 9/11 (what I refer to as the War Against Terror) has been used to justify military operations in at least 19 countries and is still in force. Obama had the Libya intervention in 2011, which was his most direct confrontation with the Act. Obama committed forces, the 60-day clock ran out, he did not withdraw, and he argued the ongoing operations didn’t constitute “hostilities” under the Act, a legal interpretation widely criticized as implausible.
The Authorization for Use of Military Force resolutions, particularly the 2001 AUMF, have effectively replaced the War Powers Resolution as the operative legal framework for the country, and in doing so have created their own constitutional problem. The 2001 AUMF authorized force against those responsible for 9/11 and those who harbored them. It has since been stretched to cover Al-Qaeda affiliates that didn’t exist in 2001, ISIS, which was literally a spin-off of Al-Qaeda in Iraq that broke with Al-Qaeda, militant groups in countries never mentioned in the original authorization, and this all involves operations conducted 20+ years after the original 9/11 attack. Multiple presidents, secretaries of defense, and legal scholars across the political spectrum have argued that the 2001 AUMF has been stretched beyond any reasonable interpretation of its original scope, but Congress has never repealed or replaced it because taking a clear vote on war and peace is politically uncomfortable.
Congress has the tools to enforce the War Powers Resolution. It controls the budget, it can cut off funding, it can pass binding legislation. It has almost never used these tools aggressively. The War Powers Resolution represents Congress’s attempt to reclaim authority it had gradually surrendered through acquiescence. But statutes cannot resolve constitutional ambiguities, only the Supreme Court or a genuine political confrontation can do that.
So stay tuned for more and more and more war news until someone in Washington decides that they are serious about controlling the power of the presidency.