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§ 4. War Powers

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§ 4. War Powers Ch. 13 § 3 DESCHLER’S PRECEDENTS agreement, effective without awaiting The conferees resolved a major ratification. difference in the two measures (b) That there is Presidential power to transfer title and possession of the which related to defining the au- proposed considerations upon certifi- thority of the Commander in cation by appropriate staff officers. Chief to deploy troops. S. 440, sec- (c) That the dispatch of the so-called tion 3, provided that in the ab- mosquito boats would constitute a vio- lation of the statute law of the United sence of a congressional declara- States, but with that exception there is tion of war armed forces could be no legal obstacle to the consummation introduced only in certain cir- of the transaction, in accordance, of cumstances, including repulsion of course, with the applicable provisions of the Neutrality Act as to delivery. an armed attack, protection of Respectfully submitted. American citizens being evacuated ROBERT H. JACKSON, in situations of danger abroad, Attorney General. and pursuant to specific statutory authorization. Sections of the Sen- § 4. War Powers Act ate bill which related to reporting, period of commitment, termi- To ensure proper legislative nation dates, and congressional branch participation in decisions procedures were expressly tied to to deploy American forces, legisla- section 3. House Joint Resolution tion on war powers was intro- 542 did not contain a similar pro- duced in the 91st and 92d Con- vision. ( ) gresses. 14 Section 2(c) in the ‘‘Purpose and In 1973 the House approved Policy’’ provisions of the resolution House Joint Resolution 542. The agreed to by the conferees states: Senate struck all after the enact- ing clause and inserted in lieu The constitutional powers of the thereof the language of S. 440. President as Commander in Chief to Following a conference, a com- introduce United States Armed Forces into hostilities, or into situations promise between the House and where imminent involvement in hos- (1) Senate versions was agreed to. tilities is clearly indicated by the cir- cumstances, are exercised only pursu- 14. See, for example, H.J. Res. 1355, ant to (1) a declaration of war, (2) spe- 91st Cong. 2d Sess. (1970); S. 2956, cific statutory authorization, or (3) a 92d Cong. 1st Sess. (1971); H.J. Res. national emergency created by attack 1, 92d Cong. 1st Sess. (1971); S. 731, upon the United States, its territories 92d Cong. 1st Sess. (1971). or possessions, or its armed forces. 1. See § 4.2, infra, for the vote over- riding the President’s veto of the Unlike the Senate bill, no subse- compromise, H.J. Res. 542. quent section of the resolution re- 1782 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 4 fers to section 2(c), the description case with a similar provision of the of war powers of the Commander Senate bill (section 3). in Chief. Much of the debate on This statement supports an infer- the conference report focused on ence that section 2(c) does not ex- whether the President could intro- haustively define all cir- duce troops only in the situations cumstances in which the Presi- described in section 2(c) and in no dent may deploy troops. ( ) other situation 2 or whether that A nonrestrictive interpretation section merely stated his author- of the three situations described ity in a manner which did not in section 2(c) avoids the question limit his authority to deploy whether Congress may define the ( ) troops. 3 The most revealing ex- constitutional authority of the pression of the intent of the con- Commander in Chief by statute ferees on this controversy appears rather than constitutional amend- in two sentences in the conference ment. The President in his veto report: (4) message asserted that a constitu- Section 2(c) is a statement of the au- tional amendment is the only way thority of the Commander in Chief re- in which constitutional authorities specting the introduction of United of another branch of government States Armed Forces into hostilities. may be altered. A statutory at- . Subsequent sections of the joint tempt to make such alterations is resolution are not dependent upon thc (5) language of this subsection, as was the ‘‘clearly without force.’’ The con- gressional view on this matter is 2. Section 2(a) of the act states that in- expressed in section 2(b) of the suring the collective judgment of act. Citing and interpreting article Congress and the President in the I, section 8, clause 11, of the Con- introduction of American forces into stitution, section 2(b) states the hostilities is a purpose of the act. constitutional provision: 3. In his veto message the President, applying the restrictive interpreta- . [P]rovided that the Congress tion of § 2(c), stated that America’s shall have power to make all laws nec- effective response in the Berlin crisis essary and proper for carrying into of 1961, Cuban missile crisis of 1962, execution, not only its own powers but Congo rescue operation of 1964, and also all other powers vested by the the Jordanian crisis of 1970, would Constitution in the Government of the have been ‘‘vastly complicated or United States or in any department or even made impossible.’’ (See 119 officer thereof. CONG. REC. 34990, 34991, 93d Cong. Section 3 of the resolution im- 1st Sess., Oct. 25, 1973.) poses on the President a duty ‘‘in 4. H. REPT. No. 93–547, 2 U.S. Code legis. and Adm. News, p. 2364 (1973) 5. See § 4.1, infra, for the veto message. 1783 Ch. 13 § 4 DESCHLER’S PRECEDENTS every possible instance’’ to consult propriate action by the Congress, with Congress before introducing and requires the President to ter- troops and to consult regularly minate use of armed forces within after such introduction until 60 days after submission of the re- armed forces are no longer en- port, unless Congress (1) has de- gaged in hostilities or have been clared war or enacted specific au- removed from such situations. The thorization, (2) has by law ex- conferees explained that this pro- tended the 60-day period, or (3) is vision is not a limitation upon or physically unable to meet. The 60- substitute for other provisions of day period may be extended not the resolution. The conferees in- more than 30 days. Notwith- tended that consultations take standing the 60-day provision, place even when advance con- forces engaged in hostilities out- sultation is not possible.(6) side the United States, its posses- Section 4 provides that in the sions, and territories must be re- absence of a declaration of war, in moved by the President if Con- any case in which United States gress so directs by concurrent res- Armed Forces are introduced in olution.(7) certain circumstances, the Presi- Section 6 mandates that a joint dent must submit within 48 hours resolution or bill declaring war or to the Speaker and President pro tempore specified information as 7. Id. Statutes have been adopted well as any other information which authorize the use of concur- rent resolutions to achieve congres- Congress requests. The President sional purposes and which apply pro- must continue to make reports pe- cedures patterned after the War riodically as long as troops are en- Powers Act. Thus, the statute imple- gaged in hostilities but not less menting the United States proposal often than once every six months. for an early warning system in Sinai The objective of this section, ex- empowers Congress by concurrent plained the conferees, is to insure resolution to remove U.S. civilian that Congress by right and as a personnel from Sinai if it determines matter of law will be provided that their safety is jeopardized or that continuation of their role is no with all the information it needs longer necessary. 22 USC § 2441 to carry out its responsibilities. note, Pub. L. No. 94–110, 89 Stat. Section 5 relates to referral of 572, Oct. 13, 1975. The National the report to committee and ap- Emergencies Act authorizes Con- gress by concurrent resolution to ter- 6. See H. REPT. No. 93–547, 2 U.S. minate a national emergency. 50 Code Legis. and Adm. News, p. 2364 USC § 1622, Pub. L. No. 94–412, 90 (1973). Stat. 1255, Sept. 14, 1976. 1784 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 4 authorizing use of armed forces President to remove forces en- introduced at least 30 days prior gaged in hostilities be referred to to the 60-day period specified in the House Committee on Foreign section 5 be referred in the House Affairs or to the Senate Com- to the Committee on Foreign Af- mittee on Foreign Relations, as fairs (renamed the Committee on the case may be. Such committee International Relations on Mar. must report with recommenda- 19, 1975). When reported by the tions within 15 calendar days un- committee, the measure becomes less otherwise determined by the the pending business and is voted yeas and nays. Such resolution be- on within three calendar days comes the pending business of the thereafter unless otherwise deter- House in question. After passage mined by the yeas and nays. After in one House, the resolution is to passage in one House, the meas- be referred to the counterpart ure is to be referred to the coun- committee in the other House, terpart committee of the other and is to be reported out with rec- House and reported out not later ommendations within 15 calendar than 14 calendar days before the days, at which time it becomes the expiration of the 60-day period pending business of that House.
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