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Home , Declaration of war, War Powers Resolution

4.8: Presidential Making Powers AP U. S. Government Congress shall have the power to…

 To declare war;  To raise and support armies The Constitution  To provide and maintain a navy; Article I, Section 8  To oversee the rules for the military;  To provide for calling forth the to…suppress insurrections and repel invasions;  To provide for organizing, arming, and disciplining, and governing the militia The Constitution The President shall be Commander in Article II, Chief of the Army and Navy of the Section 2 , and of the Militia of the several States, when called into the actual Service of the United States “The President shall be Commander in Chief of the Army and Navy of the United Commander in States, and of the Militia of the several Chief States, when called into the actual Service of the United States” ---Article I Section 2  “The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme Hamilton, command and direction of the military and naval Federalist 69 forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, gall which, by the Constitution under consideration, would appertain to the legislature.” Why put the war power in Congress’ hands? “The power of declaring war…is in its nature and effects so critical and calamitous, that it requires the utmost deliberation, and the successive review of all of the councils of the nations. War, in its best estate, never fails to impose upon the people the most burthensome taxes and personal sufferings. It is always injurious, and sometimes subversive of the great Why? commercial, manufacturing, and agricultural interests. Nay, it always involves the prosperity, and not unfrequently the existence, of a nation. It is sometimes fatal to public liberty itself…”

--Supreme Court Justice Joseph Story (Fisher p. 4) Why put the power in the president’s hands? “Decision, activity, secrecy, and dispatch will generally characterize the Hamilton, proceedings of one man in a much more eminent degree than the proceedings of Federalist 70 any greater number; and in proportion as the number is increased, these qualities will be diminished.” War Powers (1973) , 1973 – in response to President Nixon’s secret bombing and subsequent invasion of Cambodia and the wider war in Vietnam

The president shall “in every possible instance” consult with Congress before committing troops to The War hostilities and consult regularly after

Powers Requires presidential notification of Congress within 48 hours of committing forces to hostile Resolution situations overseas

The president is required to bring troops home within 60-90 days unless Congress approves more time 1. President must consult w/ Congress before introducing armed forces into hostilities The War 2. Consult with Congress Powers regularly until troops removed Resolution 3. If war not declared, President must submit report to Congress within 48 hours of troop deployment 4. President must remove troops after 60 days (+30 days for withdrawal) if Congress has not declared war It is the purpose of this to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicate by the circumstances, and to the continued use of such forces in hostilities or in such situations.

The constitutional powers of the President as Commander-in-Chief to War Powers introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly Resolution indicated by the circumstances, are exercised only pursuant to (1) a , (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

War Powers Resolution Examples of Presidential War- Making Powers II Yesterday, December 7, 1941 - a date which will live in infamy - the United States of was suddenly and deliberately attacked by naval and air forces of the Empire of Japan.

…As Commander-in-Chief of the Army and Navy I have directed that all measures be taken for our defense, that always will our whole nation remember the character of the onslaught against us.

…I believe that I interpret the will of the Congress and of the people when I assert December 8, that we will not only defend ourselves to the uttermost but will make it very 1941 certain that this form of treachery shall never again endanger us.

…I ask that the Congress declare that since the unprovoked and dastardly attack by Japan on Sunday, December 7, 1941, a of war has existed between the United States and the Japanese Empire.

President Franklin D. Roosevelt War Message to Congress JOINT RESOLUTION Declaring that a state of war exists between the Imperial Government of Japan and the Government and the people of the United States and making provisions to prosecute the same.

Whereas the Imperial Government of Japan has committed unprovoked acts of war against the Government and the people of the United States of America:

Therefore be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the state of war between the United December 8, States and the Imperial Government of Japan which has thus been thrust upon the United States is hereby formally declared; and the President is hereby authorized and 1941 directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial Government of Japan; and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States.

Congressional Declaration of War House 388-1 Senate 82-0 Vietnam Last night I announced to the American people that the North Vietnamese regime had conducted further deliberate attacks against U.S. naval vessels operating in international waters….

After consultation with the leaders of both parties in the Congress, I further announced a decision to ask the Congress for a resolution expressing the unity and determination of the United States in supporting freedom and in protecting peace in southeast Asia.

As President of the United States I have concluded that I should now ask the August 5, Congress, on its part, to join in affirming the national determination that all such attacks will be met, and that the United States will continue in its basic policy of 1964 assisting the free nations of the area to defend their freedom.

As I have repeatedly made clear, the United States intends no rashness, and seeks no wider war. We must make it clear to all that the United States is united in its determination to bring about the end of Communist subversion and aggression in the area. We seek the full and effective restoration of the international agreements signed in Geneva in 1954, with respect to South Vietnam, and again in Geneva in 1962, with respect to Laos... President Lyndon B. Johnson Statement on the Gulf of Tonkin Incident Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

That the Congress approves and supports the determination of the President, as Commander in Chief, to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression.

…the United States is, therefore, prepared, as the President determines, to take all August 7, 1964 necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense requesting assistance in defense of its freedom.

…This resolution shall expire when the President shall determine that the peace and security of the area is reasonably assured by international conditions created by action of the or otherwise, except that it may be terminated earlier by concurrent resolution of the Congress.

Gulf of Tonkin Resolution House 416-0 Senate 88-2 I know Members of Congress agree that Saddam Hussein's regime is still a threat to peace, as it was when you passed the Iraq Liberation Act of 1998. I also know members of the United Nations are angry that this regime continues to thumb its nose at the world, defying at least 16 U.N. Security Council resolutions adopted between 1990 and 1999 that require Iraq to disarm and give up weapons of mass destruction, to stop threatening its neighbors and to stop oppressing the Iraqi people. America intends to lead the way to make certain that the Saddam Hussein regime is not able to threaten anyone in the world with the world's most devastating weapons. September 4, Doing nothing in the face of a grave threat to the world is not an option. At an appropriate time and 2002 after consultations with the leadership, I will seek congressional support for U.S. action to do whatever is necessary to deal with the threat posed by Saddam Hussein's regime. The Congress can play an important role in building a national consensus for action.

My Administration remains committed to the regime change policy enshrined in the Iraq Liberation Act. The world must address how the Iraqi people can be liberated from the bondage in which the regime holds them and realize a better future for their children.

President George W. Bush Letter to Speaker Dennis Hastert This joint resolution may be cited as the `Authorization for Use of Military Force Against Iraq Resolution of 2002'.

…The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to-- (1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq. October 10,

2002 …In connection with the exercise of the authority granted in subsection (a) to use force the President shall, prior to such exercise or as soon thereafter as may be feasible, but no later than 48 hours after exercising such authority, make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination

…Consistent with section 8(a)(1) of the , the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

Joint Resolution of Congress House 296-133 Senate 77-23  President George H. W. Bush:  “I don’t have to get permission from some old goat in the to kick Saddam Hussein out of .”

How do we  President : think of the  “I think I have a big responsibility to appropriately president’s war consult with Members of Congress in both parties— whenever we are in the process of making a decision powers today? which might lead to the use of force. But I think that, clearly, the Constitution leaves the president, for good and sufficient reasons, the ultimate decision making authority.”  Gradual expansion of doctrine of “protecting Americans abroad”  General growth of Presidential prominence in the press and elections  Curtiss-Wright case What  Korea and Alternative sources of legitimacy changed? (UN, NATO)  Precedents  Military technology and the Cold War  Secret agencies  Congressional abdication of responsibility In what ways can Congress fight back? Why is it difficult for Congress to do so? What other constitutional powers does Congress possess that can limit the president’s war-making ability?

Other  Passing laws Congressional  Controlling appropriations (funding) Powers  Confirmation of nominees   Treaty ratification  Hearings and investigations Consulting requirement:  “The President in every possible instance shall consult with Congress before War Powers introducing US Armed Forces into hostilities or into situations where imminent Resolution involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress…” Reporting requirement  In the absence of a declaration of war, when troops are introduced War Powers  1) into hostilities or imminent hostilities  2) into the territory of a foreign nation armed Resolution for combat  3) In numbers which substantially enlarge the forces in a nation or region… Automatic removal  Within 60 days after the report is submitted or required to be submitted, the President War Powers shall terminate any use of United States Resolution armed forces unless the Congress  Declares war  Has extended by law the 60 day period  Is physically unable to meet Post War Powers Resolution Actions Reagan Bush Clinton Post WPR Presidential Behavior  Common behaviors:  Relying on United Nations as source of legitimacy  Denying Congress has a role in initiating conflict  Moving troops first, to apply pressure to Congress Supreme Court Weighs In The Prize Cases (1862) Korematsu v. United War Powers: States (1944) The Supreme Youngstown Sheet & Court Tube Co. v. Sawyer Weighs In (1951) Hamdan v. Rumsfeld (2005)  Key Issue: Did President Lincoln act within his presidential powers when he blockaded southern ports without a declaration of war? The Prize  Court’s Decision: The President Cases (1862) had the power to act because a state of war existed.  Discussion Question: Does this case expand or limit the war powers of the President and/or Congress?  Key Issue: Did the Present, with the support of Congress, have the power to restrict the rights of Japanese Americans by relocating them to internment camps? Korematsu  Court’s Decision: The government’s limitation of rights v. U.S. (1944) was justified during a time of“emergency and peril.”  Discussion Question: Does this case expand or limit the war powers of the President and/or Congress?  Key Issue: Did President Truman have the power to seize & operate steel mills to avert a strike during the ? Youngstown Sheet Co. v.  Court’s Decision: The President did Sawyer (1951) not have the authority to seize private property without a congressional statute.  Discussion Question: Does this case expand or limit the war powers of the President and/or Congress?  Key Issues: 1) Were the military commissions set up by the Bush administration to try detainees at Guantanamo Bay constitutional? Hamdan  2) Can Congress pass legislation preventing the Supreme Court from v. hearing the case? Rumsfeld  Court’s Decision: Neither an act (2005) of Congress nor the inherent powers of the President authorize military commissions that do not comply with US and international laws.  Discussion Question: Does this case expand or limit the war powers of the President and/or Congress? Questions to consider Have the lines between the president's role as commander- in-chief and Congress's power to declare war been blurred?

Is the president too able to commit American troops to conflict without congressional approval or oversight?

Is the War Powers Resolution effective or even constitutional?

How do the president’s war-making powers and congressional oversight like the War Powers Resolution illustrate the concept of checks and balances?

How might a divided government make this issue more contentious?