Due to the recent controversy over whether or not President Obama needed Congressional approval to take action in Libya, our bloggy friend, 5thstate, recently took an in-depth look at what the War Powers Act of 1973 actually says and what it requires of the President.
What he found might be surprising to most laymen and Congresspeople…
In a Huffington Post opinion piece of March 29th, 2011, Representative Mike Honda, the co-chairperson of the Congressional Progressive Caucus’s Peace and Security Taskforce, took issue with the President’s use of US military forces with regard to the month-old Libyan uprising that, after three weeks of popular, political and geographic momentum had not only stalled in its progress but was under threat of total destruction by Moammar Ghaddafi’s resource-rich, formally-trained, and overwhelmingly better-equipped forces.
The key concern remains the lack of Congressional involvement and oversight. The War Powers Act of 1973, created after the Vietnam War to ensure legislative checks and balances before and during wartime situations, limits the president’s ability to commit armed forces to conditions that are not met in this case.
If the U.S. wants to lead and inspire the world in setting the standard for good governance, getting this executive-legislative relationship right is critical.
Mike Honda, Democrat
The thrust of Representative Honda’s complaint is shared by several other Democratic Party members and by many Republicans too, representing a rare (these days) shared bipartisan concern over not only policy but also legal and constitutional issues — which would be encouraging if the expressed concerns from both sides of the political aisle shared the same motivation for complaint, and even if, regardless of motivation, they were based on direct knowledge rather than vague interpretation and practical fact rather than conjectural fantasy.
Rep. Mike Honda:
The War Powers Act of 1973, created after the Vietnam War to ensure legislative checks and balances before and during wartime situations, limits the president’s ability to commit armed forces…
Wrong — and for so many reasons!
1973 War Powers Act:
Sec. 4. (a) In the absence of a declaration of war, in any case in which United States Armed Forces are introduced—
(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;
(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or
(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation; the President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth—
(A) the circumstances necessitating the introduction of United States Armed Forces;
(B) the constitutional and legislative authority under which such introduction took place; and
(C) the estimated scope and duration of the hostilities or involvement.
[Sec. 4](b) The President shall provide such other information as the Congress may request in the fulfillment of its constitutional responsibilities with respect to committing the Nation to war and to the use of United States Armed Forces abroad. (Emphasis added)
First of all; the constitutionality of any Act or general action is decided by a given, sitting, Supreme Court; the War Powers Act was not established as being constitutional by the 1973 Supreme Court and has never been ratified or struck-down by the SCOTUS since, because it has never been placed on the Supreme Court’s docket—the invocation of “constitutional responsibilities” in the War Powers Act verbiage is a rhetorical argument only, not a matter of legal fact, but never mind that; theoretically any Act passed by Congress is both legal and constitutional until tested and proven otherwise, thus the War Powers Act is actually legal, absent a specific test of constitutionality.
Secondly; Mike Honda claims that the War Powers Act was written “to ensure legislative checks and balancesbefore and during wartime situations, limits the president’s ability to commit armed forces…”
The War Power Act does no such thing:
[Sec. 4 (a) ] (3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation; the President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth—
(A) the circumstances necessitating the introduction of United States Armed Forces;
(B) the constitutional and legislative authority under which such introduction took place;
The 1973 War Powers Act thus specifically allows the President to commit US military forces first without informing (let alone seeking consent of) Congress. This allowance is specifically referenced by “under which such introduction took place;” — note the use of the past tense.
The President is only required by the War Powers Act to explain such a commitment after the fact, and NOT “before” it.
Furthermore, the President is only required to deliver a written justification within 48 hours after the use of military force to “the Speaker of the House of Representatives and to the President pro tempore of the Senate,” NOT to the entirety of the Congress or even just the House of Representatives. It is up to those two official leaders of their respective Houses as to how (and whether) they communicate that report to their colleagues.
There’s more to 1973 War Powers Act than I’ve excerpted here, but mercifully not a lot more. It is an impressively brief piece of legislation and arguably as a result of that brevity it is inherently (and by design and/or accident) nowhere near as specific as its format might suggest and to me anyway, appears to be far less practical than was perhaps originally intended. (Here’s the War power Act in the original).
Here’s some background and context:
The 1973 War Powers Act was written and passed in belated response to the manner in which the USA embroiled itself in (or rather co-created) the Vietnam War, which ended in ignominious fashion in 1975. Nixon vetoed the Act but was overridden by Congress.
During the 1980s when Iran, under the rule of Ayatollah Khomeni, began interfering with international shipping in the Persian Gulf, President Reagan deployed significant US Navy forces in the region to which he gave express authority to engage not only in self-defense but also attack, whereupon several armed exchanges took place between US and Iranian air and naval forces. Congress, fearing escalation into outright war, made noises invoking the War Powers Act at least twice. Reagan responded by deeming the War Powers Act unconstitutional and told the Congress to STFU, which Congress agreed to do.
As I understand it (having actually read the thing pursuant to formulating my opinion) the 1973 War Powers Act:
a) Has no definitive constitutional status, only ordinary legal status by virtue of it being an Act of Congress, so it can’t be used as a definitive imperative to contest the constitutionality of a President’s ostensibly unapproved use of military force and in so doing prevent such action by the President.
b) It actually allows the President to commit any and all branches of the American military in service of a cause of the President’s choosing and/or demanded by circumstance without prior consent not only of the whole Congress, but even of the Speaker of the House and the President pro tempore of the Senate.
c) The President is only obliged to provide a written report with 48 hours AFTER the commitment of forces, to only the Speaker of the House and Senate President Pro Tempore, a justification for the use of military force—the extent of detail in such a report is not particularly specific.
d) The President is further permitted to maintain and even escalate the commitment of forces for up to 90 days without a formal majority approval by Congress.
e) The specific application of the terms of the Act is entirely up to Congress—its invocation is meaningless if a majority of Congress doesn’t or won’t enforce its terms on the President’s actions (in other words, if the Congress doesn’t or won’t withhold funds to finance the specific use of military force and/or hold a vote regarding approval of the action.
f) By not holding a specific vote of approval and or/by not voting on the withholding of funds, the Congress by default approves of the military action taken in its original or escalated forms.
Representative Honda and his like-minded colleagues in both political parties should actually read and comprehend the actual content and caveats of the War Powers Act before invoking it as the basis of some complaint regarding the balance Congressional, Executive, and Constitutional powers, and maybe direct their complaints towards the details of the Act itself, rather than towards the President’s current actions concerning Libya — by precedence, practice and in its particulars — the War Powers Act has been and is irrelevant, in this case and every case in which it has been invoked, by virtue of its nebulous and toothless content.
Either the War Powers Act should be rewritten to ACTUALLY secure some restraint on a President’s power to commit military forces, or those invoking should at least read it first an acknowledge its irrelevance and stop wasting everyone’s time posturing and mewling about something they can’t and won’t, actually do anything about.