War Powers Resolution

Based on Wikipedia: War Powers Resolution

The Law Presidents Keep Breaking

There's a federal law on the books that's been violated by nearly every president since its passage. It was designed to be the ultimate check on executive war-making power. Congress passed it over a presidential veto. And yet, half a century later, it remains one of the most ignored statutes in American history.

The War Powers Resolution of 1973 was supposed to end the era of undeclared wars. It hasn't.

How America Goes to War (On Paper)

The framers of the Constitution were deeply suspicious of concentrated power, especially when it came to waging war. They'd seen European monarchs drag their nations into bloody conflicts on personal whims, and they wanted no part of that system.

So they split the war powers between two branches of government.

Congress got the heavy lifting: the power to declare war, to raise and fund armies, to make rules governing military forces, and to call up state militias. The president got a more limited role—commander in chief of the armed forces, but only once those forces had been authorized by Congress.

Think of it like this: Congress holds the car keys. The president can drive, but only after Congress hands over the keys and tells them where to go.

At least, that was the theory.

The Theory Meets Vietnam

For most of American history, this arrangement held together reasonably well. Yes, there were skirmishes and small-scale military actions that presidents authorized on their own. But major wars—the Civil War, World War One, World War Two—all came with formal declarations from Congress.

Then came Vietnam.

The United States spent over a decade fighting one of the bloodiest conflicts in its history, losing more than 58,000 American lives. Congress never declared war. Instead, presidents gradually escalated American involvement, citing vague authorizations and emergency powers.

Members of Congress watched their constitutional authority evaporate.

The final straw came when news leaked that President Richard Nixon had been secretly bombing Cambodia—a neutral country—without telling Congress. Not asking permission. Not even informing them it was happening.

Congress had had enough.

The Resolution Takes Shape

In 1973, a Democratic congressman from Wisconsin named Clement Zablocki introduced a bill to reclaim Congress's war powers. It had something unusual for that era: genuine bipartisan support. Many of the co-sponsors were military veterans who understood both the necessity of military action and the dangers of unchecked executive power.

The bill's core requirements were straightforward:

• The president must notify Congress within 48 hours of sending troops into combat
• Armed forces cannot remain in hostilities for more than 60 days without congressional authorization
• An additional 30-day withdrawal period is allowed if needed to safely remove troops
• The president must consult with Congress throughout any military engagement

The resolution acknowledged that presidents could respond to emergencies—attacks on the United States, its territories, or its armed forces—without waiting for Congress. But routine military adventures? Those required the people's representatives to sign off.

Nixon was furious. He sent a telegram calling the bill "dangerous and unconstitutional restrictions" on presidential power. Gerald Ford, then a congressman, read the telegram aloud on the House floor.

Nixon vetoed the bill.

Congress overrode the veto with a two-thirds majority in both chambers. On November 7, 1973, the War Powers Resolution became law.

What "Constitutional" Actually Means Here

The debate over the War Powers Resolution touches on a fascinating quirk of American governance: the Constitution doesn't always give clear answers.

The document creates what scholars call a "twilight zone" of concurrent authority. Both Congress and the president have legitimate claims to power over military matters. Congress declares war and funds the military. The president commands it. What happens when they disagree?

The Supreme Court has largely stayed out of this fight, treating disputes between the political branches as "political questions" that courts shouldn't resolve. When a congressman sued President Bill Clinton over the Kosovo bombing campaign in 1999, the court declined to rule on whether the president had violated the law.

This means enforcement of the War Powers Resolution depends almost entirely on political will. Congress could cut off funding. Congress could impeach a president for ignoring it. But taking those steps requires political courage that has historically been in short supply.

The Reagan Administration's Position

The Reagan administration made no secret of its hostility toward the resolution. Abraham Sofaer, the State Department's legal advisor, laid out the objections clearly.

First, he argued the 60-day deadline "creates unwise limitations on Presidential authority to deploy U.S. forces in the interests of U.S. national security."

Second—and more radically—he claimed that "the President's constitutional authority cannot in any case even be impermissibly infringed by statute." In other words, Congress simply lacked the power to limit presidential war-making, period.

The administration also carved out a specific exception: anti-terrorism operations. These, Sofaer argued, were "more analogous to law enforcement activity by police in the domestic context than to hostilities between states." The War Powers Resolution, in this view, simply didn't apply to hunting terrorists.

This argument would echo loudly after September 11, 2001.

The 60-Day Clock and Its Loopholes

The resolution's most concrete requirement—that 60-day deadline—turns out to have a significant weakness. It assumes presidents will honestly report when hostilities begin, triggering the clock.

Presidents have found creative ways around this.

When Clinton bombed Kosovo for more than two weeks past the deadline, his legal team argued that Congress had "implicitly authorized" the operation by funding it. Never mind that the War Powers Resolution specifically states that funding does not constitute authorization. The administration claimed it did anyway.

When Obama intervened in Libya in 2011, his administration took an even more creative approach. After 60 days of American jets flying combat missions, dropping bombs, and refueling allied aircraft, the State Department declared there were no "hostilities" happening.

This was too much even for Obama's own lawyers. The Department of Defense and the Department of Justice's Office of Legal Counsel both concluded that, yes, the Libya operation constituted hostilities. The State Department disagreed and won the internal debate.

The United States was conducting 26 percent of all military sorties in the operation. American planes were providing 75 percent of aerial refueling. We were contributing 70 percent of intelligence and surveillance. But legally, according to the administration, this didn't count as being involved in combat.

The House Rebukes a President

On June 3, 2011, the House of Representatives took the unusual step of formally rebuking President Obama for maintaining the Libya operation without congressional authorization. Members of both parties objected.

Bruce Ackerman, a professor at Yale Law School, offered a blunt assessment of Obama's legal reasoning: it "lacks a solid legal foundation. And by adopting it, the White House has shattered the traditional legal process the executive branch has developed to sustain the rule of law over the past 75 years."

The rebuke accomplished nothing. The Libya operation continued.

Syria and the Limits of Prohibition

The Syrian civil war presented an even starker test of congressional authority.

When Syrian President Bashar al-Assad's forces used chemical weapons against civilians in 2013—including the horrific Ghouta attack that killed hundreds—President Obama did something unusual. He actually asked Congress for authorization to use military force.

Congress said no.

Instead, lawmakers passed a carefully limited bill allowing the Defense Department to train and equip Syrian opposition forces. The bill specifically stated it did not authorize "the introduction of United States Armed Forces into hostilities."

The prohibition could hardly have been clearer.

Obama sent ground forces into Syria anyway. So did his successor, Donald Trump. When Trump launched 59 cruise missiles at a Syrian airbase in 2017—in response to another alleged chemical weapons attack—constitutional scholars noted this potentially violated both the War Powers Resolution and Congress's explicit refusal to authorize military action in Syria.

No legal consequences followed.

Yemen and a Rare Congressional Pushback

One of the clearest recent tests of the War Powers Resolution came from an unlikely coalition: Bernie Sanders, an independent from Vermont; Chris Murphy, a Democrat from Connecticut; and Mike Lee, a Republican from Utah.

They wanted to end American support for the Saudi-led military intervention in Yemen.

The Yemen war had become a humanitarian catastrophe. Thousands of civilians had been killed by Saudi airstrikes, many using American-made weapons. Millions more were suffering from starvation and disease, caught in what the United Nations called the world's worst humanitarian crisis.

American involvement was significant. We were providing the Saudis with intelligence, targeting assistance, and aerial refueling—keeping their jets in the air to drop bombs on Yemeni cities.

Sanders introduced his bill in February 2018, invoking the War Powers Resolution to force a withdrawal of American support. The Senate voted to table the motion.

Then came the assassination of Jamal Khashoggi.

Khashoggi was a Saudi journalist and Washington Post columnist who was murdered inside the Saudi consulate in Istanbul in October 2018. American intelligence concluded that Crown Prince Mohammed bin Salman had ordered the killing.

Suddenly, senators who had defended the Saudi relationship found their position untenable. In December 2018, the Senate voted 56-to-41 to invoke the War Powers Resolution and end support for the Yemen war.

The House of Representatives never voted on the bill before the congressional session ended.

Why the Resolution Keeps Failing

After fifty years, a pattern has emerged. Presidents of both parties ignore or creatively interpret the War Powers Resolution. Congress occasionally objects. Courts refuse to get involved. The military operation continues.

Several factors explain this dynamic.

First, the resolution's enforcement mechanisms are weak. There's no automatic penalty for violating it. Congress must take affirmative action—cutting funding, refusing authorizations, even impeachment—and these steps carry significant political risks. Voting against military action can look unpatriotic, especially when troops are already deployed.

Second, presidents have information advantages. They control the intelligence agencies, the military, the diplomatic cables. When a president says action is necessary to protect national security, Congress often feels pressure to defer to executive expertise.

Third, the courts have essentially removed themselves from the equation. By treating war powers disputes as non-justiciable political questions, judges have left the resolution's enforcement entirely to political actors who often lack the will to enforce it.

Fourth, and perhaps most importantly, the public rarely pays attention. Wars that don't involve large numbers of American casualties—drone strikes, special operations, bombing campaigns—generate little domestic opposition. Politicians face minimal pressure to invoke their constitutional prerogatives.

The Strange Case of Declared Wars

Here's a remarkable fact: the United States has not formally declared war since June 5, 1942, when Congress declared war on Bulgaria, Hungary, and Romania as part of World War Two.

In the eighty-plus years since, American forces have fought in Korea, Vietnam, Grenada, Panama, the Persian Gulf, Somalia, Bosnia, Kosovo, Afghanistan, Iraq, Libya, Syria, Yemen, and numerous smaller operations. None were accompanied by a formal declaration of war.

Instead, Congress has sometimes passed "Authorizations for Use of Military Force"—AUMFs—which are legally distinct from declarations of war but provide similar political cover. The 2001 AUMF, passed after September 11, has been used to justify military action in at least seven countries and remains in effect today.

The distinction matters. A declaration of war triggers various legal consequences: enemy aliens can be detained, certain contracts become void, different rules apply to civil liberties. An AUMF is more flexible, less formal, and—critics argue—less accountable.

What the Framers Might Think

It's worth pausing to consider how far we've drifted from the constitutional design.

The framers gave Congress the war power for a reason. They believed that the decision to send young people to kill and die should require broad popular support, expressed through elected representatives. War should be difficult to start and easy to end.

We've achieved something like the opposite. Modern presidents can initiate military action with minimal congressional involvement. Once troops are deployed, political pressure makes it nearly impossible to bring them home. The 2001 AUMF has been in effect for over two decades, longer than the War of 1812, the Mexican-American War, the Spanish-American War, World War One, and World War Two combined.

The War Powers Resolution was supposed to restore the constitutional balance. Instead, it's become a monument to good intentions unfulfilled.

The Numbers Tell a Story

As of 2011, presidents had submitted 130 reports to Congress under the War Powers Resolution. That's roughly 3.4 reports per year since the law's passage—evidence that presidents do take the notification requirement somewhat seriously, even as they ignore other provisions.

But submitting a report is very different from requesting authorization. Reports inform Congress of military action already underway. They start the 60-day clock—assuming the president acknowledges that hostilities exist—but they don't require Congress to approve anything.

The gap between notification and authorization is where presidential power has expanded most dramatically. Presidents report what they're doing. They just don't ask permission.

A Law That Won't Die

Despite its failures, the War Powers Resolution remains on the books. Presidents denounce it as unconstitutional but generally comply with its reporting requirements. Congress periodically threatens to invoke it but rarely follows through. The courts stay out of the fight entirely.

This strange equilibrium persists because both branches benefit from ambiguity. Presidents get flexibility to use military force while claiming to respect congressional prerogatives. Congress gets political cover: members can criticize military adventures without taking the politically risky step of actually blocking them.

The losers in this arrangement are the American public—who are repeatedly committed to military operations without meaningful democratic deliberation—and the people in other countries who find themselves on the receiving end of American firepower.

The Underlying Question

Fifty years after its passage, the War Powers Resolution forces us to confront an uncomfortable question: Can a democracy really control its own war-making?

The framers thought so. They designed a system where the people's representatives would debate and vote before the nation went to war. Modern practice suggests otherwise. Technology has made military action faster and more remote. Executive power has expanded. Congressional will has weakened.

The resolution stands as evidence that America once tried to reclaim legislative control over war. It also stands as evidence of how thoroughly that effort has failed.

Whether this represents a constitutional crisis or simply constitutional evolution depends on your perspective. What's undeniable is that the gap between the law on the books and the law in practice has never been wider. Presidents keep sending troops into combat. Congress keeps complaining. And the War Powers Resolution, that ambitious attempt to check executive war-making, keeps being honored more in the breach than in the observance.