War Powers Resolution: A Brief Summary of Pro and Con Arguments

War Powers Resolution: A Brief Summary of Pro and Con Arguments

96-494 F
June 5, 1996
CRS Report for Congress
Received through the CRS Web
War Powers Resolution:
A Brief Summary of Pro and Con Arguments
(name redacted)
Specialist in National Defense
Foreign Affairs and National Defense Division
Summary
The War Powers Resolution, Public Law 93-148, was enacted by Congress over
the veto of President Nixon on November 7, 1973. Through more than twenty-two years
of experience, the resolution has remained a focus of controversy on the war powers of
the President and Congress under the Constitution.1 Major areas of controversy include
the constitutionality of some provisions, the proper roles for the President and Congress
in entering armed conflicts, the effect on U.S. military operations, and the effectiveness
of the resolution in achieving its purpose of assuring that the collective judgment of the
Congress and the President apply to the introduction of U.S. Armed Forces into
hostilities. In the post-Cold War era, the relationship of the War Powers Resolution to
U.S. participation in military/peacekeeping activities under the auspices of the United
Nations, as well as peacekeeping operations in general have become an issue. This
report lists major arguments for and against the resolution. This report will not be
updated.
PRO
CON
The War Powers Resolution
The War Powers Resolution is
seeks to carry out Article I, Section 8
unconstitutional because it impedes
of the Constitution which grants
the ability of the President to carry out
Congress the power to declare war and
his function as Commander in Chief
to make all laws necessary for carrying
granted by Article II, Section 2 of the
into execution the powers vested by
Constitution. The War Powers
the Constitution in the government.
Resolution attempts to take away
The founding fathers gave Congress
authorities that the President has
1 For additional information, see: The War Powers Resolution: Twenty-Two Years of
Experience. May 24, 1996. CRS Report 96-476 F. 58 p.; War Powers Resolution: Presidential
Compliance. CRS Issue Brief IB81050; updated periodically. War Powers: Bibliography-in-
Brief, 1988-1992. CRS Report 93-675 L.
Congressional Research Service ˜ The Library of Congress

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the power to declare war so that the
exercised for 200 years. Throughout
President alone could not commit the
American history Presidents have used
Nation to war.
U.S. forces abroad, without a
The War Powers Resolution is
declaration of war or other
necessary to reverse the trend since
congressional authorization, when
World War II for Presidents to send
necessary to protect American citizens
armed forces into conflicts abroad
or defend U.S. interests.
without congressional authorization.
The War Powers Resolution
The War Powers Resolution
permits adequate flexibility by
impedes the President's flexibility to
recognizing the President's right to
respond quickly and decisively to
respond to a national emergency
world events by providing for
created by attack upon the United
congressional consultation and
States, its territories, or its armed
a u t h o r i z a t i o n f o r s u s t a i n e d
forces.
deployments into hostilities. It
encourages foreign adversaries to
continue their activities until U.S.
mandatory withdrawal deadlines are
reached.
The War Powers Resolution has
The War Powers Resolution has
been effective in encouraging
been ineffective because it has not
Presidents to consider the opinion of
prevented Presidents from undertaking
Congress prior to engaging in conflict
military actions without congressional
and in some instances in restraining
approval and it has not brought about
the size or duration of military
consultation prior to decisions. Except
commitments. Presidents have
in the Mayaguez incident, Presidents
reported consistent with the War
have never reported under section
Powers Resolution on more than sixty
4(a)(1) that they have introduced
occasions.
forces into hostilities or imminent
hostilities.
Collective judgment and the
The War Powers Resolution
support of Congress and the President
hinders effective conduct of military
are essential to effective conduct of
operations abroad. The resolution is
wars, and the War Powers Resolution
not necessary because Congress has
seeks to assure that both branches
ample opportunity through resolutions,
share in making the decision from the
au t h ori z i n g l e g i s l a t i o n , a n d
beginning.
appropriations, to shape decisions on
the use of armed forces.
The War Powers Resolution
The War Powers Resolution
provides a framework of procedures to
diverts congressional debate from the
obtain congressional advice and
merits of specific courses of action
authorization for military actions
and focuses attention on prerogatives
abroad in a timely fashion.
and procedures.
The power of the purse provides

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The War Powers Resolution
Congress opportunity to halt any
provides a method for Congress to
military action it disapproves so the
bring about the end of any
War Powers Resolution is not
commitment of forces into hostilities
necessary.
or imminent hostilities.
The War Powers Resolution
It is unconstitutional to require
provides a time limit for using forces
that forces be withdrawn within 60 to
without first obtaining congressional
90 days because of congressional
authorization, and this time limit
inaction. The time limit is arbitrary
provides important leverage for
and inflexible and assures adversaries
Congress. After the President reports
that if they wait out the time limit,
under the War Powers Resolution, or
U.S. forces will be withdrawn. Some
should have reported, that he has
Members object that the time limit has
introduced forces into hostilities or
in practice given the President 60 free
imminent hostilities, the forces must
days in which he can use forces
be withdrawn within 60 to 90 days
without congressional authorization.
unless Congress declares war or
authorizes the forces to remain.
Section 5(c) of the War Powers
The War Powers Resolution is
Resolution provides that at any time
unconstitutional because Section 5(c)
Congress by concurrent resolution can
is a legislative veto, providing for
direct the President to withdraw forces
action to withdraw forces from
from hostilities. This is not a
hostilities by a concurrent resolution
legislative veto because there is no
of Congress. A concurrent resolution
delegation of authority as in other
does not require presentation to the
legislative vetoes (rulemaking,
President for signature, and thus such
suspension of deportation, etc.), where
a measure does not go through the full
Congress placed a condition on
legislative process. In INS v. Chadha
delegated authority. If Members want
and related cases, the Supreme Court
to act by joint resolution, that
d e c l a r e d l e g i s l a t i v e v e t o e s
procedure already exists in Section
unconstitutional.
1013 of P.L. 98-164, signed
November 22, 1983.
If the War Powers Resolution has
Laws such as the War Powers
been less effective than its supporters
Resolution are attempts by Congress
originally hoped, it is because
to micromanage foreign policy and to
Presidents have not complied with all
force consultation and cooperation.
its provisions, or because Congress
Such cooperation cannot be mandated
has not had the will to take the
by legal line-drawing but must be
decisions necessary to enforce it. If
based on recognition of shared
either the President or Congress would
responsibilities, attitudes of trust, and
observe the legislation, the resolution
mutual goals.
could be effective in assuring that both
branches supported military action.

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The War Powers Resolution is
The War Powers Resolution is a
essentially sound and any necessary
vestige of the Vietnam War era and
steps to adapt its functioning to the
not suited to the new world situation
new post-Cold War world could be
in which U.S. involvement in
taken through minor amendments or
hostilities may often be part of a
without amending the resolution itself.
multilateral effort. The post-Cold War
Such measures might include
era requires greater flexibility for the
establishing a standing consultative
President to make rapid decisions that
group or specifying congressional
may entail the use of forces in new
procedures in the United Nations
and varied ways.
Participation Act.

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