Is the War Powers Resolution Constitutional?

The framers of the Constitution gave both Congress and the President a role when it comes to questions of war. Article I, Section 8, Clause 11 gives Congress the power “to declare war,” while Article II, Section 2, Clause 1 names the President as the Commander in Chief of the United States Armed Forces. But what happens when a President sends American forces into hostile situations without the official declaration of war from Congress? Well, in 1973, Congress attempted to address that question through the War Powers Resolution, a law designed to establish limits and requirements on the President’s ability to use military force without congressional authorization. However, its passage has created another constitutional question: Whether Congress can legally restrict the President’s authority as Commander in Chief?

The War Powers Resolution of 1973 came after years of growing tensions between Congress and the executive branch’s handing over the use of American military forces abroad, more specifically, the President’s handling of the Korean and Vietnam War in the 1950s and early 1960s. Congress passed the Resolution over President Nixon’s veto in an attempt to reassert Congress’s constitutional role in decisions involving military conflict. Under the War Powers Resolution, the President is required to consult with Congress “in every possible instance” before sending American forces into a region of hostilities and must report certain deployments to Congress within 48 hours. More importantly, the law generally requires those forces to be withdrawn from the regions they were deployed to within 60 days unless Congress declares war, provides authorization for the military action, or extends the deadline.

Supporters of the War Powers Resolution point to the powers the Constitution already gives Congress. The power to declare war is only one of several military powers found in Article I. Congress also has the power to raise and support armies, provide and maintain a Navy, make rules governing the armed forces, and control the funding of the military. From this perspective, the Resolution doesn’t take away the Commander in Chief’s power from them, rather it creates a process intended to make sure that Congress also has a role when American forces are placed into hostile situations. Even the Department of Justice concluded in a 1980 legal opinion that Congress may “place a 60-day limit on the use of our armed forces” while still leaving the President enough room to exercise the powers as Commander in Chief.

However, almost every Presidential administration has challenged whether Congress can actually go this far as to place these kinds of restrictions. Before Congress overrode President Nixon’s veto on the War Powers Resolution, he argued that parts of the law imposed unconstitutional restrictions on the President’s authority as Commander in Chief of the Military. Nixon explained that as the Commander in Chief, the clause provides the President with some independent constitutional authority to use American forces without first receiving authorization from Congress. If that authority comes directly from Article II, then a federal law requiring the

President to end certain military operations after a specific period of time could interfere with a power the Constitution gives to the executive branch. Since the passing of the resolution, Presidential administrations have continued to raise constitutional concerns about parts of the law, even as Presidents have submitted reports to Congress consistent with the Resolution’s requirements.

Despite more than fifty years of disagreement between Congress and the executive branch, the courts have not provided a clear answer that resolves the larger question. Lawsuits involving the President’s use of military force have often raised questions about whether the courts should even decide disputes over war powers between Congress and the President. In some cases, courts have avoided deciding these disputes because of the political question doctrine, which can limit courts from resolving certain constitutional questions that are left to the political branches. This has allowed the War Powers Resolution to remain in effect while the constitutional disagreement between the two branches continue.

So, whether the War Powers Resolution is Constitutional or not still remains unclear. Ultimately, the debate raises a much larger question about how the power of war is divided in the first place. The Constitution gives Congress the power to declare war and fund the military while also making the President Commander in Chief, but it never draws a clear line showing exactly where one branch’s authority ends and the other begins. The War Powers Resolution was Congress’s attempt to create that line, but Presidents have continued to question whether Congress has the constitutional authority to do so. More than fifty years later, the debate may no longer simply be about whether the War Powers Resolution itself is constitutional, but rather who ultimately gets to decide where Congress’s power over war ends and the President’s begins.

Works Cite:

Arti.s8.c11.2.1 overview of declare war clause. constitution.congress.gov. (n.d.). Overview of Declare War Clause | Constitution Annotated

Harmon, J. M. (2014, July 10). Presidential power to use the Armed Forces Abroad Without Statutory Authorization. Office of Legal Counsel | Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization | United States Department of Justice. Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization | United States Department of Justice

Nixon, war powers resolution, U.S. history, Presidential Authority, military intervention, congressional oversight. National Leader in Civic Education Resources | Bill of Rights Institute. (n.d.). Nixon, War Powers Resolution, U.S. history, presidential authority, military intervention, congressional oversight

Presidential Power and commander in chief clause | constitution annotated | congress.gov | library of Congress. constitution.congress.gov. (n.d.-b). ArtII.S2.C1.1.11 Presidential Power and Commander in Chief Clause The Nixon Library Education and Public Programs Team. (2021, July 27).

War powers resolution of 1973. War Powers Resolution of 1973 | Richard Nixon Museum and Library. War Powers Resolution of 1973 | Richard Nixon Museum and Library War powers act public law 93-148 93rd Congress, H. J. res. 542. psc.uncg.edu. (n.d.). War Powers Act