ArtII.S2.C1.1.12 Congressional Control Over President's Discretion

Article II, Section 2, Clause 1:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Over the President’s veto, Congress enacted in 1973 the War Powers Resolution,1 designed to redistribute the war powers between the President and Congress. Although ambiguous in some respects, the Resolution appears to define restrictively the President’s powers, to require him to report fully to Congress upon the introduction of troops into foreign areas, to specify a maximum time limitation on the engagement of hostilities absent affirmative congressional action, and to provide a means for Congress to require cessation of hostilities in advance of the time set.

The Resolution states that the President’s power to commit United States troops into hostilities, or into situations of imminent involvement in hostilities, is limited to instances of (1) a declaration of war, (2) a specific statutory authorization, or (3) a national emergency created by an attack on the United States, its territories or possessions, or its armed forces.2 In the absence of a declaration of war, a President must within 48 hours report to Congress whenever he introduces troops (1) into hostilities or situations of imminent hostilities, (2) into a foreign nation while equipped for combat, except in certain nonhostile situations, or (3) in numbers which substantially enlarge United States troops equipped for combat already located in a foreign nation.3 If the President introduces troops in the first of these three situations, then he must terminate the use of troops within 60 days after his report was submitted or was required to be submitted to Congress, unless Congress (1) has declared war, (2) has extended the period, or (3) is unable to meet as a result of an attack on the United States, but the period can be extended another 30 days by the President’s certification to Congress of unavoidable military necessity respecting the safety of the troops.4 Congress may through the passage of a concurrent resolution require the President to remove the troops sooner.5 The Resolution further states that no legislation, whether enacted prior to or subsequent to passage of the Resolution will be taken to empower the President to use troops abroad unless the legislation specifically does so and that no treaty may so empower the President unless it is supplemented by implementing legislation specifically addressed to the issue.6

Aside from its use as a rhetorical device, the War Powers Resolution has been of little worth in reordering presidential-congressional relations in the years since its enactment. In general, Presidents operating under it have expressly or implicitly considered it to be at least in part an unconstitutional infringement on presidential powers,7 and on each occasion of use abroad of United States troops the President in reporting to Congress has done so “consistent[ly] with” the reporting section but not pursuant to the provision.8 Upon the invasion of Kuwait by Iraqi troops in 1990, President George H.W. Bush sought not congressional authorization but a United Nations Security Council resolution authorizing the use of force by member Nations. Only at the last moment did the President seek authorization from Congress, he and his officials contending that he had the power to act unilaterally.9 After intensive debate, Congress voted, 250 to 183 in the House of Representatives and 53 to 46 in the Senate, to authorize the President to use United States troops pursuant to the U.N. resolution and purporting to bring the act within the context of the War Powers Resolution.10

Presidents have continued to claim independent authority to commit U.S. Armed Forces to involvements abroad absent any congressional participation other than consultation and after-the-fact financing. In 1994, for example, President Bill Clinton based his authority to order the participation of U.S. forces in NATO actions in Bosnia-Herzegovina on his “constitutional authority to conduct U.S. foreign relations” and as his role as Commander in Chief,11 and protested efforts to restrict the use of military forces there and elsewhere as an improper and possibly unconstitutional limitation on his “command and control” of U.S. forces.12 In March 2011, President Barack Obama ordered U.S. military forces to take action as part of an international coalition to enforce U.N. Security Council Resolution 1973, which authorized U.N. Member States to take all necessary measures (other than through military occupation) to protect civilians from attacks by the Libyan government and to establish a no-fly zone over the country. Although these operations had not been authorized by legislation, the Executive Branch submitted a report to Congress which claimed that the President has the “constitutional authority, as Commander in Chief and Chief Executive and pursuant to his foreign affairs powers, to direct such limited military operations abroad.” 13

By contrast, President George W. Bush sought a resolution from Congress in 2002 to approve the eventual invasion of Iraq before seeking a U.N. Security Council resolution, all the while denying that express authorization from Congress, or for that matter, the U.N. Security Council, was necessary to renew hostilities in Iraq. Prior to adjourning for its midterm elections, Congress passed the Authorization for Use of Military Force against Iraq Resolution of 2002,14

, 116 Stat. 1498 (2002). The House approved the resolution by a vote of 296-133. The Senate passed the House version of H.J. Res. 114 by a vote of 77-23. 148 Cong. Rec. S10342 (daily ed. Oct. 11, 2002). which it styled as “specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.” On signing the measure, the President noted that he had sought “an additional resolution of support” from Congress, and expressed appreciation for receiving that support, but stated, “my request for it did not, and my signing this resolution does not, constitute any change in the long-standing positions of the executive branch on either the President’s constitutional authority to use force to deter, prevent, or respond to aggression or other threats to U.S. interests or on the constitutionality of the War Powers Resolution.” 15 In the Bush administration’s view, the primary benefit of receiving authorization from Congress seems to have been the message of political unity it conveyed to the rest of the world rather than the fulfillment of any constitutional requirements.

Although there is recurrent talk within Congress and without as to amending the War Powers Resolution to strengthen it, no consensus has emerged, and there is little evidence that there exists within Congress the resolve to exercise the responsibility concomitant with strengthening it.16

Pub. L. No. 93-148, 87 Stat. 555 (1973) (codified at 50 U.S.C. §§ 15411548). For congressional intent and explanation, see H. Rep. No. 93-287, S. Rep. No. 9-220, & H. Rep. No. 93-547 , 93d Cong. (1973)(Conf. Rep.). The President’s veto message is H. Doc. No. 93-171, 93d Cong. (1973); The War Powers Resolution: Relevant Documents, Reports, Correspondence, H. Comm. on Foreign Affs., 103d Cong. 1–46 (1994) (Comm. Print). For an account of passage and assessment of the disputed compliance from the congressional point of view, see The War Powers Resolution, A Special Study of the H. Comm. on Foreign Affs., 102d Cong. (1982) (Comm. Print). back
Pub. L. No. 93-147, 87 Stat. 554, § 2(c) (1973) (codified at 50 U.S.C. § 1541). back
50 U.S.C. § 1543(a). back
50 U.S.C. § 1544(b). back
Id. at § 1544(c). Following INS v. Chadha, 462 U.S. 919 (1983), Congress subsequently enacted expedited procedures for considering joint resolutions or bills to require removing U.S. Armed Forces from situations of hostilities. Department of State Authorization Act, Fiscal Years 1984 and 1985, Pub. L. No. 98–164 § 1013, 97 Stat. 1062 (1983) (codified at 50 U.S.C. § 1546(a)). back
50 U.S.C. § 1547(a). back
See generally Dep’t of Just., Authority of the President under Domestic and International Law to Use Military Force against Iraq, 26 Op. O.L.C. 1, 39–45 (2002) (discussing presidential views and Dep’t of Justice opinions concerning the constitutionality of the War Powers Resolution). back
See The War Powers Resolution: Relevant Documents, Reports, Correspondence, H. Comm. on Foreign Affs., 103d Cong. 47 (1994) (Comm. Print) (Pres. Ford on transport of refugees from Danang), 55 (Pres. Jimmy Carter on attempted rescue of Iranian hostages), 73 (Pres. Ronald Reagan on use of troops in Lebanon), 113 (Pres. Ronald Reagan on Grenada), 144 (Pres. George H.W. Bush on Panama), 147, 149 (Pres. George H.W. Bush on Persian Gulf), 189 (Pres. George H.W. Bush on Somalia), 262 (Pres. William J. Clinton on Haiti). back
See Crisis in the Persian Gulf Region: U.S. Policy Options and Implications: Hearings Before the S. Comm. on Armed Servs., 101st Cong. 701 (1990) (Secretary Cheney) (President did not require “any additional authorization from the Congress” before attacking Iraq). On the day following his request for supporting legislation from Congress, President George H.W. Bush answered a question about the requested action, stating: “I don’t think I need it. I feel that I have the authority to fully implement the United Nations resolutions.” 27 Weekly Comp. Pres. Doc. 25 (Jan. 8, 1991). back
Pub. L. No. 102-1, 105 Stat. 3 (1991). back
30 Weekly Comp. Pres. Doc. 406 (March 2, 1994). back
See Interview with Radio Reporters, 1993 Pub. Papers 1763–64. back
Report to the House of Representatives on United States Activities in Libya (2011). The Department of Justice’s Office of Legal Counsel issued a legal opinion which claimed that the President possessed independent constitutional authority to commence U.S. military operations in Libya without prior congressional authorization because these operations would be “limited” in scope and the President could “reasonably determine that such use of force was in the national interest.” Dep’t of Just., Authority to Use Military Force in Libya, 35 Op. O.L.C. 20 (2011). The opinion stated that “prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period” may generally require prior congressional authorization, but claimed that “historical practice of presidential military action without congressional approval precludes any suggestion that Congress’s authority to declare war covers every military engagement, however limited, that the President initiates.” Id. at 8. back
Pub. L. No.
, 116 Stat. 1498 (2002)
. The House approved the resolution by a vote of 296-133. The Senate passed the House version of H.J. Res. 114 by a vote of 77-23. 148 Cong. Rec. S10342 (daily ed. Oct. 11, 2002). back
See Presidential Statement on Signing H.J. Res. 114, 38 Weekly Comp. Pres. Doc. 1777 (2002). back
For proposals to amend and on congressional responsibility, see John Hart Ely, War And Responsibility: Constitutional Lessons Of Vietnam And Its Aftermath 115–138 (1993). back