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The War Powers Resolution: Concepts and Practice

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The War Powers Resolution: Concepts and Practice The War Powers Resolution: Concepts and Practice Updated March 8, 2019 Congressional Research Service https://crsreports.congress.gov R42699 The War Powers Resolution: Concepts and Practice Summary This report discusses and assesses the War Powers Resolution and its application since enactment in 1973, providing detailed background on various cases in which it was used, as well as cases in which issues of its applicability were raised. In the post-Cold War world, Presidents have continued to commit U.S. Armed Forces into potential hostilities, sometimes without a specific authorization from Congress. Thus the War Powers Resolution and its purposes continue to be a potential subject of controversy. On June 7, 1995, the House defeated, by a vote of 217-201, an amendment to repeal the central features of the War Powers Resolution that have been deemed unconstitutional by every President since the law’s enactment in 1973. In 1999, after the President committed U.S. military forces to action in Yugoslavia without congressional authorization, Representative Tom Campbell used expedited procedures under the Resolution to force a debate and votes on U.S. military action in Yugoslavia, and later sought, unsuccessfully, through a federal court suit to enforce presidential compliance with the terms of the War Powers Resolution. The War Powers Resolution (P.L. 93-148) was enacted over the veto of President Nixon on November 7, 1973, to provide procedures for Congress and the President to participate in decisions to send U.S. Armed Forces into hostilities. Section 4(a)(1) requires the President to report to Congress any introduction of U.S. forces into hostilities or imminent hostilities. When such a report is submitted, or is required to be submitted, Section 5(b) requires that the use of forces must be terminated within 60 to 90 days unless Congress authorizes such use or extends the time period. Section 3 requires that the “President in every possible instance shall consult with Congress before introducing” U.S. Armed Forces into hostilities or imminent hostilities. From 1975 through March 2017, Presidents have submitted 168 reports as the result of the War Powers Resolution, but only one, the 1975 Mayaguez seizure, cited Section 4(a)(1), which triggers the 60-day withdrawal requirement, and in this case the military action was completed and U.S. armed forces had disengaged from the area of conflict when the report was made. The reports submitted by the President since enactment of the War Powers Resolution cover a range of military activities, from embassy evacuations to full-scale combat military operations, such as the Persian Gulf conflict, and the 2003 war with Iraq, the intervention in Kosovo, and the anti- terrorism actions in Afghanistan. In some instances, U.S. Armed Forces have been used in hostile situations without formal reports to Congress under the War Powers Resolution. On one occasion, Congress exercised its authority to determine that the requirements of Section 4(a)(1) became operative on August 29, 1983, through passage of the Multinational Force in Lebanon Resolution (P.L. 98-119). In 1991 and 2002, Congress authorized, by law, the use of military force against Iraq. In several instances none of the President, Congress, or the courts has been willing to initiate the procedures of or enforce the directives in the War Powers Resolution. In the 115th Congress, U.S. military operations related to the joint counter-Houthi campaign conducted by the Kingdom of Saudi Arabia and the United Arab Emirates (UAE) in Yemen spurred congressional legislative action in both houses of Congress. The Senate on December 13, 2018, voted to adopt S.J.Res. 54, a joint resolution to “direct the removal of United States Armed Forces from hostilities in the Republic of Yemen that have not been authorized by Congress,” marking the first instance that such a joint resolution received consideration and passed the full Senate under the expedited consideration provisions of Section 1013 of the Department of State Authorization Act, Fiscal Years 1984 and 1985 (P.L. 98-164; 50 U.S.C. §1546a). In the 116th Congress, the House of Representatives on February 13, 2019, voted to adopt a similar joint resolution on U.S. military involvement in Yemen, H.J.Res. 37, and the Senate is expected to take up a companion measure, S.J.Res. 7, in March 2019. Congressional Research Service The War Powers Resolution: Concepts and Practice Contents Introduction ..................................................................................................................................... 1 Provisions of the War Powers Resolution (P.L. 93-148) ................................................................. 1 Title ........................................................................................................................................... 1 Purpose and Policy .................................................................................................................... 1 Consultation Requirement ......................................................................................................... 2 Reporting Requirements ............................................................................................................ 2 Congressional Action ................................................................................................................ 4 Priority Procedures .................................................................................................................... 5 Interpretive Provisions .............................................................................................................. 5 Constitutional Questions Raised ...................................................................................................... 6 War Powers of the President and Congress ............................................................................... 6 Legislative Veto ......................................................................................................................... 7 Automatic Withdrawal Provision .............................................................................................. 9 Major Cases and Issues Prior to the Persian Gulf War .................................................................... 9 Vietnam Evacuations and Mayaguez: What Is Consultation? ................................................. 10 Iran Hostage Rescue Attempt: Is Consultation Always Necessary and Possible? .................. 10 El Salvador: When Are Military Advisers in Imminent Hostilities? ....................................... 10 Honduras: When Are Military Exercises More than Training? ............................................... 12 Lebanon: How Can Congress Invoke the War Powers Resolution? ....................................... 13 Grenada: Do the Expedited Procedures Work? ....................................................................... 14 Libya: Should Congress Help Decide on Raids to Undertake in Response to International Terrorism? ....................................................................................................... 15 Persian Gulf, 1987: When Are Hostilities Imminent? ............................................................. 16 Invasion of Panama: Why Was the War Powers Issue Not Raised? ........................................ 18 Major Cases and Issues in the Post-Cold War World .................................................................... 18 Persian Gulf War, 1991: How Does the War Powers Resolution Relate to the United Nations and a Real War? ...................................................................................................... 20 Iraq-Post Gulf War: How Long Does an Authorization Last?................................................. 23 Somalia: When Does Humanitarian Assistance Require Congressional Authorization? ........ 25 Former Yugoslavia/Bosnia/Kosovo: What If No Consensus Exists? ...................................... 27 Bosnia ............................................................................................................................... 27 Kosovo .............................................................................................................................. 32 Haiti: Can the President Order Enforcement of a U.N. Embargo? ......................................... 35 Terrorist Attacks against the United States (World Trade Center and the Pentagon) 2001: How Does the War Powers Resolution Apply? .......................................................... 37 Use of Force Against Iraq Resolution 2002: A Classic Application of the War Powers Resolution? .......................................................................................................................... 40 Libya 2011: Establishing a New Definition of What Constitutes “Hostilities” for Purposes of Full Compliance with the War Powers Resolution? ......................................... 42 Administration Report to Congress on “United States Activities in Libya” Submitted on June 15, 2011 ........................................................................................... 43 The War Powers Resolution and Military Use of UAVs: Some Considerations ............... 43 Military Campaign Against the Islamic State ......................................................................... 44 Presidential Reporting on Individual Missions and the War Powers Resolution’s Withdrawal Requirement ..............................................................................................
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