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Congressional Research Service Report

The War Powers Resolution

Provisions of the War Powers Resolution (P.L. 93-148)

Title

Section 1 establishes the title, "The War Powers Resolution." The law is frequently referred to as the "War Powers Act," the title of the measure passed by the Senate. Although the latter is not technically correct, it does serve to emphasize that the War Powers Resolution, embodied in a joint resolution which complies with constitutional requirements for lawmaking, is a law.

Purpose and Policy

Section 2 states the Resolution's purpose and policy, with Section 2(a) citing as the primary purpose to "insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations."

Section 2(b) points to the Necessary and Proper Clause of the Constitution as the basis for legislation on the war powers. It provides that "Under Article I, section 8, of the Constitution it is specifically provided that Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States...."

Section 2(c) states the policy that the powers of the President as Commander in Chief to introduce U.S. armed forces into situations of hostilities or imminent hostilities "are exercised only pursuant to --

(1) a declaration of war,

(2) specific statutory authorization, or

(3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces."

Consultation Requirement

Section 3 of the War Powers Resolution requires the President "in every possible instance" to consult with Congress before introducing U.S. Armed Forces into situations of hostilities and imminent hostilities, and to continue consultations as long as the armed forces remain in such situations. The House report elaborated:

A considerable amount of attention was given to the definition of consultation. Rejected was the notion that consultation should be synonymous with merely being informed. Rather, consultation in this provision means that a decision is pending on a problem and that Members of Congress are being asked by the President for their advice and opinions and, in appropriate circumstances, their approval of action contemplated. Furthermore, for consultation to be meaningful, the President himself must participate and all information relevant to the situation must be made available. (1)

The House version specifically called for consultation between the President and the leadership and appropriate committees. This was changed to less specific wording in conference, however, in order to provide more flexibility.

Reporting Requirements

Section 4 requires the President to report to Congress whenever he introduces U.S. armed forces abroad in certain situations. Of key importance is section 4(a)(1) because it triggers the time limit in section 5(b). Section 4(a)(1) requires reporting within 48 hours, in the absence of a declaration of war or congressional authorization, the introduction of U.S. armed forces "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances."

Some indication of the meaning of hostilities and imminent hostilities is given in the House report on its War Powers bill:

The word hostilities was substituted for the phrase armed conflict during the subcommittee drafting process because it was considered to be somewhat broader in scope. In addition to a situation in which fighting actually has begun, hostilities also encompasses a state of confrontation in which no shots have been fired but where there is a clear and present danger of armed conflict. "Imminent hostilities" denotes a situation in which there is a clear potential either for such a state of confrontation or for actual armed conflict. (2)

Section 4(a)(2) requires the reporting of the introduction of troops "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." According to the House report this was to cover

the initial commitment of troops in situations in which there is no actual fighting but some risk, however small, of the forces being involved in hostilities. A report would be required any time combat military forces were sent to another nation to alter or preserve the existing political status quo or to make the U.S. presence felt. Thus, for example, the dispatch of Marines to Thailand in 1962 and the quarantine of Cuba in the same year would have required Presidential reports. Reports would not be required for routine port supply calls, emergency aid measures, normal training exercises, and other noncombat military activities. (3)

Section 4(a)(3) requires the reporting of the introduction of troops "in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation." The House report elaborated:

While the word "substantially" designates a flexible criterion, it is possible to arrive at a common-sense understanding of the numbers involved. A 100% increase in numbers of Marine guards at an embassy -- say from 5 to 10 -- clearly would not be an occasion for a report. A thousand additional men sent to Europe under present circumstances does not significantly enlarge the total U.S. troop strength of about 300,000 already there. However, the dispatch of 1,000 men to Guantanamo Bay, Cuba, which now has a complement of 4,000 would mean an increase of 25%, which is substantial. Under this circumstance, President Kennedy would have been required to report to Congress in 1962 when he raised the number of U.S. military advisers in Vietnam from 700 to 16,000. (4)

 

All of the reports under Section 4(a), which are to be submitted to the Speaker of the House and the President pro tempore of the Senate, are to set 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.

Section 4(b) requires the President to furnish such other information as Congress may request to fulfill its responsibilities relating to committing the nation to war.

Section 4(c) requires the President to report to Congress periodically, and at least every six months, whenever U.S. forces are introduced into hostilities or any other situation in section 4(a).

The objectives of these provisions, the conference report stated, was to "ensure that the Congress by right and as a matter of law will be provided with all the information it requires to carry out its constitutional responsibilities with respect to committing the Nation to war and to the use of United States Armed Forces abroad." (5)

Congressional Action

Section 5(a) deals with congressional procedures for receipt of a report under section 4(a)(1). It provides that if a report is transmitted during a congressional adjournment, the Speaker of the House and the President pro tempore of the Senate, when they deem it advisable or if petitioned by at least 30% of the Members of their respective Houses, shall jointly request the President to convene Congress in order to consider the report and take appropriate action.

Section 5(b) was intended to provide teeth for the War Powers Resolution. After a report "is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier", section 5(b) requires the President to terminate the use of U.S. Armed Forces after 60 days unless Congress (1) has declared war or authorized the action; (2) has extended the period by law; or (3) is physically unable to meet as a result of an armed attack on the United States. The 60 days can be extended for 30 days by the President if he certifies that "unavoidable military necessity respecting the safety of United States Armed Forces" requires their continued use in the course of bringing about their removal.

Section 5(c) requires the President to remove the forces at any time if Congress so directs by concurrent resolution; the effectiveness of this subsection is uncertain because of the 1983 Supreme Court decision on the legislative veto. It is discussed in Part II of this report.

Priority Procedures

Section 6 establishes expedited procedures for congressional consideration of a joint resolution or bill introduced to authorize the use of armed forces under section 5 (b). They provide for:

(a) A referral to the House Foreign Affairs [International Relations] or Senate Foreign Relations Committee, the committee to report one measure not later than 24 calendar days before the expiration of the 60 day period, unless the relevant House determines otherwise by a vote;

(b) The reported measure to become the pending business of the relevant House and be voted on within three calendar days, unless that House determines otherwise by vote; in the Senate the debate is to be equally divided between proponents and opponents;

(c) A measure passed by one House to be referred to the relevant committee of the other House and reported out not later than 14 calendar days before the expiration of the 60 day period, the reported bill to become the pending business of that House and be voted on within 3 calendar days unless determined otherwise by a vote;

(d) Conferees to file a report not later than four calendar days before the expiration of the 60 day period. If they cannot agree within 48 hours, the conferees are to report back in disagreement, and such report is to be acted on by both Houses not later than the expiration of the 60 day period.

Section 7 establishes similar priority procedures for a concurrent resolution to withdraw forces under section 5(c). For a recent use of these procedures see the section on the legislative veto, below.

Interpretive Provisions

Section 8 sets forth certain interpretations relating to the Resolution. Section 8(a) states that authority to introduce armed forces is not to be inferred from any provision of law or treaty unless it specifically authorizes the introduction of armed forces into hostilities or potential hostilities and states that it is "intended to constitute specific statutory authorization within the meaning of this joint resolution." This language was derived from a Senate measure and was intended to prevent a security treaty or military appropriations act from being used to authorize the introduction of troops. It was also aimed against using a broad resolution like the Tonkin Gulf Resolution (6) to justify hostilities abroad. This resolution had stated that the United States was prepared to take all necessary steps, including use of armed force, to assist certain nations, and it was cited by Presidents and many Members as congressional authorization for the Vietnam war.

Section 8(b) states that further specific statutory authorization is not required

to permit members of United States Armed Forces to participate jointly with members of the armed forces of one or more foreign countries in the headquarters operations of high-level military commands which were established prior to the date of enactment of this joint resolution and pursuant to the United Nations Charter or any treaty ratified by the United States prior to such date.

This section was added by the Senate to make clear that the resolution did not prevent U.S. forces from participating in certain joint military exercises with allied or friendly organizations or countries. The conference report stated that the "high-level" military commands meant the North Atlantic Treaty Organization, (NATO), the North American Air Defense Command (NORAD) and the United Nations command in Korea.

Section 8(c) defines the introduction of armed forces to include the assignment of armed forces to accompany regular or irregular military forces of other countries when engaged, or potentially engaged, in hostilities. The conference report on the War Powers Resolution explained that this was language modified from a Senate provision requiring specific statutory authorization for assigning members of the Armed Forces for such purposes. The report of the Senate Foreign Relations Committee on its bill said:

The purpose of this provision is to prevent secret, unauthorized military support activities and to prevent a repetition of many of the most controversial and regrettable actions in Indochina. The ever deepening ground combat involvement of the United States in South Vietnam began with the assignment of U.S. "advisers" to accompany South Vietnamese units on combat patrols; and in Laos, secretly and without congressional authorization, U.S. "advisers" were deeply engaged in the war in northern Laos. (7)

 

Section 8(d) states that nothing in the Resolution is intended to alter the constitutional authority of either the Congress or the President. It also specifies that nothing is to be construed as granting any authority to introduce troops that would not exist in the absence of the Resolution. The House report said that this provision was to help insure the constitutionality of the Resolution by making it clear that nothing in it could be interpreted as changing the powers delegated by the Constitution.

Section 9 is a separability clause, stating that if any provision or its application is found invalid, the remainder of the Resolution is not to be affected.

Constitutional Questions Raised

From its inception, the War Powers Resolution was controversial because it operated on the national war powers, powers divided by the Constitution in no definitive fashion between the President and Congress. Congress adopted the resolution in response to the perception that Presidents had assumed more authority to send forces into hostilities than the framers of the Constitution had intended for the Commander-in-Chief. President Nixon in his veto message challenged the constitutionality of the essence of the War Powers Resolution, and particularly two provisions. (8) He argued that the legislative veto provision, permitting Congress to direct the withdrawal of troops by concurrent resolution, was unconstitutional. He also argued that the provision requiring withdrawal of troops after 60-90 days unless Congress passed legislation authorizing such use was unconstitutional because it checked Presidential powers without affirmative congressional action. Every President since the enactment of the War Powers Resolution has taken the position that it is an unconstitutional infringement on the President's authority as Commander-in-Chief.

War Powers of President and Congress

The heart of the challenge to the constitutionality of the War Powers Resolution rests on differing interpretations by the two branches of the respective war powers of the President and Congress. These differing interpretations, especially the assertions of Presidential authority to send forces into hostile situations without a declaration of war or other authorization by Congress, were the reason for the enactment of the Resolution.

The congressional view was that the framers of the Constitution gave Congress the power to declare war, meaning the ultimate decision whether or not to enter a war. Most Members of Congress agreed that the President as Commander in Chief had power to lead the U.S. forces once the decision to wage war had been made, to defend the nation against an attack, and perhaps in some instances to take other action such as rescuing American citizens. But, in this view, he did not have the power to commit armed forces to war. By the early 1970s, the congressional majority view was that the constitutional balance of war powers had swung too far toward the President and needed to be corrected. Opponents argued that Congress always held the power to forbid or terminate U.S. military action by statute or refusal of appropriations, and that without the clear will to act the War Powers Resolution would be ineffective.

In his veto message, President Nixon said the Resolution would impose restrictions upon the authority of the President which would be dangerous to the safety of the Nation and "attempt to take away, by a mere legislative act, authorities which the President has properly exercised under the Constitution for almost 200 years."

The War Powers Resolution in section 2(c) recognized the constitutional powers of the President as Commander-in-Chief to introduce forces into hostilities or imminent hostilities as "exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces." The executive branch has contended that the President has much broader authority to use forces, including for such purposes as to rescue American citizens abroad, rescue foreign nationals where such action facilitates the rescue of U.S. citizens, protect U.S. Embassies and legations, suppress civil insurrection, implement the terms of an armistice or cease-fire involving the United States, and carry out the terms of security commitments contained in treaties. (9)

Legislative Veto

On June 23, 1983, the Supreme Court in INS v. Chadha, ruled unconstitutional the legislative veto provision in section 244(c)(2) of the Immigration and Nationality Act. (10) Although the case involved the use of a one-House legislative veto, the decision cast doubt on the validity of any legislative veto device that was not presented to the President for signature. The Court held that to accomplish what the House attempted to do in the Chadha case "requires action in conformity with the express procedures of the Constitution's prescription for legislative action: passage by a majority of both Houses and presentment to the President." On July 6, 1983, the Supreme Court affirmed a lower court's decision striking down a provision in another law (11) that permitted Congress to disapprove by concurrent (two-House) resolution. (12)

Since section 5(c) requires forces to be removed by the President if Congress so directs by a concurrent resolution, it is constitutionally suspect under the reasoning applied by the Court. (13) A concurrent resolution is adopted by both chambers, but it does not require presentment to the President for signature or veto. Some legal analysts contend, nevertheless, that the War Powers Resolution is in a unique category which differs from statutes containing a legislative veto over delegated authorities. (14) Perhaps more important, some observers contend, if a majority of both Houses ever voted to withdraw U.S. forces, the President would be unlikely to continue the action for long, and Congress could withhold appropriations to finance further action. Because the War Powers Resolution contains a separability clause in section 9, most analysts take the view that the remainder of the joint resolution would not be affected even if section 5(c) were found unconstitutional. (15)

Congress has taken action to fill the gap left by the possible invalidity of the concurrent resolution mechanism for the withdrawal of troops. On October 20, 1983, the Senate voted to amend the War Powers Resolution by substituting a joint resolution, which requires presentment to the President, for the concurrent resolution in section 5(c), and providing that it would be handled under the expedited procedures in section 7. The House and Senate conferees agreed not to amend the War Powers Resolution itself, but to adopt a free standing measure relating to the withdrawal of troops. The measure, which became law, provided that any joint resolution or bill to require the removal of U.S. armed forces engaged in hostilities outside the United States without a declaration of war or specific statutory authorization would be considered in accordance with the expedited procedures of section 601(b) of the International Security and Arms Export Control Act of 1976, (16) except that it would be amendable and debate on a veto limited to 20 hours. (17) The priority procedures embraced by this provision applied in the Senate only. Handling of such a joint resolution by the House was left to that Chamber's discretion.

House Members attempted to use section 5(c) to obtain a withdrawal of forces from Somalia. On October 22, 1993, Representative Benjamin Gilman introduced H.Con.Res. 170, pursuant to section 5(c) of the War Powers Resolution, directing the President to remove U.S. Armed Forces from Somalia by January 31, 1994. Using the expedited procedures called for in section 5(c), the Foreign Affairs Committee amended the date of withdrawal to March 31, 1994, (the date the President had already agreed to withdraw the forces), and the House adopted H.Con.Res. 170. The Foreign Affairs Committee reported: (18)

Despite such genuine constitutionality questions, the committee acted in accordance with the expedited procedures in section 7. The committee action was premised on a determination that neither individual Members of Congress nor Committees of Congress should make unilateral judgments about the constitutionality of provisions of law.

 

Despite the use of the phrase "directs the President", the sponsor of the resolution and Speaker of the House Thomas Foley expressed the view that because of the Chadha decision, the resolution would be non-binding. The March 31, 1994, withdrawal date was later enacted as section 8151 of P.L. 103-139, signed November 11, 1993.

Automatic Withdrawal Provision

The automatic withdrawal provision has become perhaps the most controversial provision of the War Powers Resolution. Section 5(b) requires the President to withdraw U.S. forces from hostilities within 60-90 days after a report is submitted or required to be submitted under section 4(a)(1). The triggering of the time limit has been a major factor in the reluctance of Presidents to report, or Congress to insist upon a report, under section 4(a)(1).

Drafters of the War Powers Resolution included a time limit to provide some teeth for Congress, in the event a President assumed a power to act from provisions of resolutions, treaties, or the Constitution which did not constitute an explicit authorization. The Senate report called the time limit "the heart and core" of the bill that "represents, in an historic sense, a restoration of the constitutional balance which has been distorted by practice in our history and, climatically, in recent decades." (19) The House report emphasized that the Resolution did not grant the President any new authority or any freedom of action during the time limits that he did not already have.

Administration officials have objected that the provision would require the withdrawal of U.S. forces simply because of congressional inaction during an arbitrary period. Since the resolution recognizes that the President has independent authority to use armed forces in certain circumstances, they state, "on what basis can Congress seek to terminate such independent authority by the mere passage of time?" (20) In addition, they argue, the imposition of a deadline interferes with successful action, signals a divided nation and lack of resolve, gives the enemy a basis for hoping that the President will be forced by domestic opponents to stop an action, and increases risk to U.S. forces in the field. The issue has not been dealt with by the courts.