War Powers Act

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The Constitution of the United States names the president commander in chief of the U.S. armed forces, but it also explicitly assigns to Congress the authority to declare war. Not distinguishing clearly between the authority to initiate war and the authority to wage it, this distribution of war-making authority has fostered ambiguity and political controversy. In practice, chief executives have routinely employed the U.S. military without congressional mandate, especially during the Cold War. The purposes for which presidents have deployed U.S. forces range from a show of force to minor hostilities to large-scale warfare. Although such actions have not been uniformly popular, the persistence of a consensus regarding U.S. foreign policy has usually muted any discord about presidents exceeding their constitutional prerogatives.

That consensus collapsed with the Vietnam War. Presidents Lyndon B. Johnson and Richard M. Nixon cited the Tonkin Gulf Resolution of August 1964 as congressional authorization for U.S. involvement in and escalation of the Vietnam War. The conflict proceeded without any formal declaration of war and became increasingly unpopular as it dragged on. Critics attributed the costly U.S. involvement to a failure to prevent successive presidents from usurping authority that rightly belonged to the legislative branch. This perception provoked calls for Congress to reassert its prerogatives. Such thinking culminated in passage of the War Powers Resolution of November 1973 over President Nixon's veto. The resolution directed the president to consult Congress prior to introducing U.S. forces into hostilities; it required the president to report to Congress all nonroutine deployments of military forces within forty-eight hours of their occurrence; and it mandated that forces committed to actual or imminent hostilities by presidential order be withdrawn within sixty days unless Congress declared war, passed legislation authorizing the use of U.S. forces, or extended the deadline. The sixty-day time limit could be extended to ninety days if the president certified the need for additional time to complete the withdrawal of U.S. forces.

Heralded as a congressional triumph, the War Powers Resolution proved limited in practice. Presidents continued to insist that the resolution infringed on constitutional executive authority. Time and again, they circumvented or disregarded its provisions. Among the notable presidential flouters were Gerald Ford in 1975, at the time of the Mayaguez operation; Jimmy Carter in 1980 with the Desert One hostage rescue attempt; Ronald Reagan in 1983 with the intervention in Grenada and in 1986 with the air attack on Libya; and George Bush with the 1989 invasion of Panama. Even the U.S. military response to the Iraqi invasion of Kuwait in August 1990 lacked a congressional mandate. President Bush relied on executive authority in ordering the U.S. buildup of 500,000 troops in the Persian Gulf, showing more interest in the endorsement of the United Nations Security Council than of the U.S. Congress. Only when U.S. forces were in place and the decision to use force had been made did Bush consult Congress, less for constitutional than for political reasons. On 12 January 1991 Congress narrowly passed a resolution authorizing Bush to do what he clearly intended to do anyway—forcibly eject Iraqi troops from Kuwait. When Operation Desert Storm began four days later, the usefulness of the War Powers Resolution seemed more problematic than ever, and the goal of restoring a division of war-making powers ever more elusive.

Bibliography

Caraley, Demetrios, ed. The President's War Powers: From the Federalists to Reagan. New York: Academy of Political Science, 1984.

Kohn, Richard H., ed. Military Laws of the United States from the Civil War Through the War Powers Act of 1973. New York: Arno Press, 1979.

May, Christopher N. In the Name of War: Judicial Review and the War Powers since 1918. Cambridge, Mass.: Harvard University Press, 1989.