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.