“What is the 1973 War Powers Act” — revisited.

Just about a year ago, near the time that the President proposed Air Strikes in Syria, New NY 23rd Contributor, William Hungerfold wrote an article which explains the War Powers Act.

Recent events have brought some readers to this article. It might be worthwhile to review the 1973 War Powers Act. What is Congress’ responsibilities? Will our Congress step-up to the plate when the President’s 60 days run out? Or will they delay any decisions until after the November elections?

 

What is the 1973 War Powers Act?

The 1973 War Powers Act requires a President to notify Congress within 48 hours of launching military action, limits U.S. armed forces involvement to 60 days without congressional approval, and allows  30 days more for withdrawal.  The law was passed over Presidents Nixon’s veto; every President since has maintained it is unconstitutional. Effectively, the law gives a President a free hand to do what he or she thinks best.

Constitutional or not the law has never been effective in limiting a presidents ability to wage war.  The United States has been involved in many wars since 1973 with or without Congressional approval. The Wikipedia article cited gives a list of past crises involving war powers as well as a discussion of possible conflict with the Constitution.

Some believe that Congress can prevent a president from acting, possibly because:

  • They believe the Constitution or the War Powers Act effectively curbs this.
  • It seems reasonable.

Others, overly partisan, believe that President Obama is the first to claim the right as Commander in Chief to engage in war.

Presidents and Congress like the War Powers Act as Mark Thompson explains in the Time article cited: “Generally speaking, the President likes this, (The War Powers Act) since he doesn’t have to convince Congress of the wisdom of his war, and Congress likes it even more. Under the current system, lawmakers get to wink at the White House by passing an authorization for the use of military force or other purported justification as a fig leaf they can abandon if things go sour. A declaration of war demands more, and Congress is leery of going on the record with such declarations for its own political reasons.”

News reports indicate that British law is different: the approval of parliament is needed, and this provides a brake on any rush to war.

http://swampland.time.com/2013/08/26/obama-can-strike-syria-unilaterally/

http://en.wikipedia.org/wiki/War_Powers_Resolution

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About whungerford

* Contributor at NewNY23rd.com where we discuss the politics, economics, and events of the New New York 23rd Congressional District (Allegany, Cattaraugus, Chautauqua, Chemung, (Eastern) Ontario, Schuyler, Seneca, Steuben,Tioga, Tompkins, and Yates Counties) Please visit and “like” whatever strikes your fancy.

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8 Responses to What is the 1973 War Powers Act?

  1. You’re absolutely right about how the War Powers Act is being abused. It never was intended to give the President a free hand to start wars at his discretion. It was intended to authorize an immediate response if the United States or its allies were directly attacked, as in the invasion of South Korea by North Korea in 1951. It was not intended to give the President a free hand for 60 days and then present Congress with a fait accompli.

    • whungerford says:

      Law making often involves compromise — give and take may result in a law that purportedly does one thing and in effect does something else. Robert Moses is said to have been an expert in this kind of legislation — most of the text would be irrelevant, the real business would be buried in the fine print.

  2. solodm says:

    Under Appendix I are listed actions taken using the War Powers Act for several presidents, and under Appendix II are actions listed without such a claim.

    http://www.fas.org/man/crs/RL32267.html#_1_40

    • whungerford says:

      Thank you Deb — this CRS article certainly makes clear that this issue is far from simple. Reportedly many Americans believe law or the Constitution requires Congress to vote — how should Congress react to that political reality?

      • Deb Meeker says:

        You’re welcome. The closest scenerio to Syria in the above citation I believe was : “a bombing campaign against Iraq, termed Operation Desert Fox, aimed at destroying Iraqi industrial facilities deemed capable of producing weapons of mass destruction, as well as other Iraqi military and security targets, December 16-23, 1998.”
        If memory serves, this was a unilateral action, however, Syria is not “isolated” in partnerships as Iraq was, which is a whole other ball game. Russia, Iran and China are strong allies of Syria. Russia, has a great deal of petroeum interest in Syria.

        I would agree that Congress should be consulted. If Congress has a consensus either way, it should be documented for history. I believe the President would be making a very poor move to act without Congressional approval on this particular crisis. However, either way he goes now, he can expect to lose credibility.

  3. If you go by the plain meaning of the words, the Constitution gives Congress the right to declare war. If you read the history, you will see that the writers of the Constitution did not want to give the President the powers of a European absolute monarch, including the right in initiate war on their own authority.

    If you go by the plain meaning of the words, the War Powers Act gives the President a little more leeway to respond to attacks on allies, such as North Korea’s attack on South Korea, and other dire emergencies, but not to give the President an unlimited right to initiate war on his own behalf. I am old enough to remember the debate at the time, and this was a reaction to the excesses of the Nixon administration.

    Now it is true that, over time, the Constitution and the War Powers Act have been abused because Congress has failed to exercise its rightful responsibility. I don’t think it is necessary to prove that President Obama is worse than his immediate predecessors in order to argue that he does not have the Constitutional nor the legal right to commit the United States to acts of war on his sole judgment.

  4. pystew says:

    For those who are not following the facebook discussion, there has been two other links you might to look at:

    http://topics.nytimes.com/…/index.html

    http://www.fas.org/man/crs/RL32267.html#_1_40

  5. Pingback: Break time « Reality Check (Edit)
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About pystew

Retired Teacher, political science geek, village trustee. I lean a little left, but like a good political discussion. My blog, the New NY 23rd (http://newny23rd) is about discussing the issues facing the people of our new congressional district. Let's hear all sides of the issues, not just what the candidates want us to hear.
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4 Responses to “What is the 1973 War Powers Act” — revisited.

  1. whungerford says:

    Like it or not, the concept of a “declaration of war” is obsolete. President Obama, for better or worse, is free do what he thinks best. Congress may yell, but, bitterly divided, they are unlikely to do more than that. I believe Joseph Urban’s recent comment on the August, 2013 article reflects this view.

    Here is an opinion on the other side of the argument.
    http://www.theatlantic.com/politics/archive/2014/08/the-congress-shall-have-power-to-declare-war/379189/

  2. pystew says:

    It is my understanding that after 60 days of U.S. armed forces involvement congress needs to approve the action or the action must stop. Will congress want to be responsible to permit the involvement in Syria and Iraq or even to stop the involvement? I don’t think they want anything to do with putting their names on anything until the President is a republican.

  3. whungerford says:

    Conor Friedersdorf, in the “Atlantic” article cited above, writes: “The War Powers Resolution is not a 90-day blank check for war! It’s the same statute the Obama administration violated when it attacked Libya.” Yet if President Obama did violate the law in Libya, it is hard to see why he might not violate it again and again if he found it necessary.

  4. Pingback: House Refuses to Discuss the Use of Military Action | New NY 23rd

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