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War powers act of 1973 essay help

Mar 9, 2018

The War Powers Resolution Act was enacted in 1973 to bring under control the ability of the president to involve U.S. Armed Forces in military engagements or wars. According to the Act, the president has to consult and seek approval from the Congress before engaging American forces in foreign hostilities.

According to Grimmett (2010), the War Powers Resolution Act was enacted to prevent future presidents of the United States from engaging the Armed Forces in wars similar to the Vietnam War that resulted in extremely negative effects for the United States. It was further argued that a president would easily abuse his or her constitutional rights as the Commander-in-Chief of the Armed Forces when engaging U.S. Forces in foreign hostilities.

The Act requires the president to seek approval from the Congress before involving U.S. Armed Forces in any military engagement (MacCormick, 2008). An approval from the congress should be sought within sixty days. Despite this legal requirement by the Act, some former presidents of the United States of America such as Richard Nixon vetoed the law on the basis that the Act infringed their constitutional authority as Commander-in-Chief of the Armed Forces.

Other war powers that exist for the executive and legislative branches include the power to initiate military operations in foreign hostilities as well as supporting such operations, the power to decide collectively on military attacks and the power to declare war against foreign hostilities or looming threats. The executives and legislatives also have the power to declare emergency war against foreign attackers. This power is granted by the emergency war power act of 1941.

In addition, the Congress also has the power to extend period of engagement or terminate any military engagement of the U.S. Armed Forces into hostilities. For example, section 5(c) empowers the congress to order the president to withdraw U.S. Forces from foreign military engagements.

In my opinion, such power struggles would be more common in foreign policy areas than in domestic policy areas because various political leaders would express divergent views pertaining to foreign military engagements. Whereas some leaders would view foreign military engagement as a waste of national resources, other leaders would support the policy and thus lead to a conflict of interests amongst the leaders. Consequently, power struggles would emerge.

A great pleasure in life is doing what people say you cannot do. Walter Bagehot

The War Powers Act, also known as the War Powers Resolution of 1973, requires the following: the President, upon sending troops into military action, must notify Congress within 48 hours that he has done so. The Resolution also forbids military personnel from remaining in a state of conflict for more than 60 days (including an additional 30 days for withdrawal). After that, the President must seek an additional authorization from Congress or a formal declaration of war.

So, you may ask, how was war declared prior to 1973? For an answer to that question, we'll have to look back at some prior conflicts and at the U.S. Constitution.

The last time the United States declared war against another nation was on June 4, 1942, against Romania. This was largely a formality; Romania was an ally of Nazi Germany, and we knew we'd have to go through them on the way to Berlin. And anyway, World War II was in full swing at that point and one more declaration didn't change things that much. Still, it was the last time that the U.S. Congress discharged its official duty when it comes to entering the nation into conflict.

However, as you may have noticed, the U.S. has been in lots of conflicts since - you might even term them wars. How can that be, though, when Congress is supposed to be the institution that makes the call on when to send Americans into harm's way?

The Constitution

The Constitution has a couple of seemingly contradictory things to say about war. On the one hand, Congress, in Article I (right at the top), is given the power to not only declare war, but also the power to raise an army and navy, to fund war efforts and even to support militias (which aren't around as much anymore). So, it would seem that the Congress is supposed to be calling the shots on war-related issues - except when they don't.

The problem is that the President, in Article II, is named commander-in-chief of the armed forces and the militia. There's a pretty good-sized gray area around what that means; just about everyone agrees that this means the President is chief decision-maker about how the military is used and that the President is the only person that can lead the armed forces into conflict. So, who, then, gets to make decisions about 'when' we go to war?

Wars of the Last 150 Years

Oddly, given this fair-sized hole in the Constitution, not much came of it for the first 150 years of America's existence. There were a few perplexing moments, particularly in the Civil War, when Abraham Lincoln exerted 'war powers' that no one (Lincoln included) was really sure he had. He took measures against the Confederacy (for instance, suspending the civil right of habeas corpus), but since the Confederates were considered in the North to be a breakaway group of rebels and not a foreign nation, it didn't technically conflict with the war powers of Congress. This was the biggest hiccup in the wartime history of the United States - until 1950.

In 1950, the United States joined a United Nations-sponsored effort to defend South Korea against communist North Korea. This effort lasted three years and cost over 53,000 lives, but did not include a declaration of war by Congress. This made many Americans, in and out of government, uneasy and caused anxiety over the U.S. possibly becoming a regular partner, or even a leader, of such international efforts.

It was the Vietnam Conflict that really bothered Congress. The mission of military advisors, which were first sent in 1954, was troublingly open-ended, and many questioned whether or not what they were doing constituted an act, if not a declaration of war. The Gulf of Tonkin Incident in 1964 (in which North Vietnamese torpedo boats allegedly attacked U.S. Navy destroyers) provoked President Lyndon Johnson to ask Congress for the power to act. In response, Congress issued a joint resolution (from both Houses, which has the force of law), known as the Gulf of Tonkin Resolution, which authorized the President to take all necessary steps to resist North Vietnamese aggression.

By 1969, the conflict had widened, and a new President was in charge. Richard Nixon had campaigned promising to end the war (or whatever it was) in Vietnam, but instead, he covertly authorized an invasion of Vietnam's neighbor, Cambodia, allegedly to destroy command and supply facilities of the North Vietnamese based there. The President announced the action publicly in April 1970, causing immediate public outcry against the invasion of a neutral country.

Many members of Congress felt they had been poorly informed or deceived outright about the invasion. This event was the catalyst for the introduction of the War Powers Resolution of 1973. It's actually a resolution, instead of an act, as it's often called. This is because, while it passed both Houses of Congress in 1973, it was initially vetoed by President Nixon. It then passed again, by two-thirds' majority, which caused it to become law without a presidential signature.

Consequences - Is the War Powers Resolution Unconstitutional?

If you've been paying attention in the last four decades, you know that Presidents of both parties have come awfully close to violating this Resolution. Bill Clinton may have violated it outright in 1999, when he sent U.S. forces to defend the nation of Kosovo, in the former Yugoslavia.

Congress claimed it had the power to pass such a resolution, under the necessary and proper clause of the Constitution (which gives Congress the power to pass any law it needs to carry out its expressed powers). However, U.S. Presidents since Nixon have consistently asserted that this resolution is a violation of the executive branch's constitutional authority as commander-in-chief.

Because the major military actions since 1973 - primarily the extended conflicts in Afghanistan and Iraq, from 2002 to the present - were authorized by Congressional action, there have been no recent grounds to test the constitutionality of the resolution. What it represents, then, is an attempt by Congress to either rein in the President or to re-assert its authority over what is its constitutional obligation. Either way, the War Powers Resolution exists in an ambiguous 'sort of legal' area, one that is untried and uncertain.

Lesson Summary

The War Powers Resolution was passed in 1973 by both Houses of Congress, overriding the veto of President Nixon. It was passed to reassert Congressional authority over the decision to send American troops to war. It requires the President to notify Congress of military action within 48 hours and grants 60 days in which to conclude the action, seek additional authorization, or call for a Congressional declaration of war. Presidents since 1973 have disputed the constitutionality of the Resolution, an issue that remains unresolved. Ironically, the War Powers Act, instigated to clear up the contradictory language of the U.S. Constitution, has only further helped to muddle the question of who gets to decide when the country goes to war.

Learning Outcomes

Complete this lesson so that you'll be ready to do the following:

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