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Overview of the War Powers Resolution

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Overview of the War Powers Resolution Overview of the War Powers Resolution Summary of previous Office of Legal Counsel advice concerning the War Powers Resolution for the purpose of providing guidance in future analyses of War Powers Resolution problems. October 30, 1984 M e m o r a n d u m O p in io n f o r t h e A t t o r n e y G e n e r a l On a number of occasions during this Administration, this Office has pro­ vided both written and oral legal advice to you, the Deputy Attorney General, the Counsel to the President and the National Security Council regarding the War Powers Resolution (WPR). This advice has been rendered in connection with the deployment of United States Armed Forces in Lebanon, the provision of military assistance and intelligence to our allies in Central America, the deployment of sophisticated radar aircraft in Chad and in the Sinai, responses to an armed attack on our armed forces in the Gulf of Siddra, the deployment of troops to Grenada, and in various other circumstances. We have summarized the highlights of that advice and outlined certain historical information in this memorandum in order to provide guidance to you and to our respective succes­ sors in future analyses of War Powers Resolution problems. I. The War Powers Resolution: Summary of Provisions A. Stated Constitutional Basis The War Powers Resolution became effective on November 7, 1973 after Congress overrode President Nixon’s veto of the Resolution.1 It is codified at 50 U.S.C. §§ 1541-1548. Section 1 of the WPR sets out the name of the enactment; § 2 of the WPR states its purpose and the constitutional authorities upon which it is predicated. Its purpose is said “to fulfill the intent of the framers of the Constitution” to 1 President Nixon vetoed the War Powers Resolution on October 24, 1973. His veto message declared that the automatic 60 day termination provision, § 5(b), and legislative veto provision, § 5(c), were unconstitu­ tional. The veto was overridden on November 7 by a four vote margin in the House and by a substantial margin in the Senate. Senator Javits, one of the pnncipal sponsors of the WPR, had hoped to avoid a veto. He felt that a WPR which was enacted with the approval of the President would constitute a “compact" between Congress and the President. Holt, The War Powers Resolution: The Role of Congress in U.S. Armed Intervention 1-2 (1978). 271 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 in­ volvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations. Id. Section 2(b) invokes the Necessary and Proper Clause of the Constitution. Section 2(c) declares that the President’s constitutional powers as Commander- in-Chief with respect to the introduction of United States Armed Forces into hostilities or situations in which hostilities are clearly indicated “are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” B. Consultation Section 3 of the WPR calls for consultation “with Congress” “in every possible instance .. before introducing United States Armed Forces” into hostile situations and “regularly” thereafter until hostilities cease or those forces have been removed. C. Reporting under the WPR Section 4(a) of the WPR calls for a report to be filed with Congress within 48 hours in any case in which troops are introduced (1) into hostilities or into situations where imminent involve­ ment in hostilities is clearly indicated by the circumstances; (2) into the territory, air space or waters of a foreign nation, while equipped for combat...; or (3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation. Section 4(a) provides that the report must set forth: (A) the circumstances necessitating the introduction of United States Armed Forces; (B) the constitu­ tional and legislative authority under which the forces have been introduced; and (C) the estimated scope and duration of the deployment. Section 4(c) requires the President to report to Congress no less often than every six months, as long as the forces remain in the situation giving rise to the report. Under § 5(a), the report required by § 4(a)(1) (deployment into hostilities or situations where imminent involvement in hostilities is clearly indicated) must be transmitted to the Speaker of the House and the President pro tempore of the Senate and to the House Committee on Foreign Affairs and the Senate Com­ mittee on Foreign Relations. 272 D. Removal o f Troops Section 5(b) provides that “[w]ithin sixty calendar days after a report is submitted or is required to be submitted pursuant to” § 4(a)(1), the President must terminate the use of United States Armed Forces unless Congress has declared war, enacted a specific authorization for the use of troops, or extended the 60 day period, or unless the President is unable to do so because of an armed attack on the United States. The President may extend the 60-day period by 30 days if “unavoidable military necessity respecting the safety o f’ the forces “requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.” Section 5(c) contains an unconstitutional legislative veto device purporting to authorize Congress, acting by a concurrent resolution not subject to the President’s veto, to require removal of troops in any situation involving actual hostilities. This Administration testified before Congress that this provision was implicitly invalidated by the Court’s decision in INS v. Chadha, 462 U.S. 919 (1983).2 Congress has not disputed that conclusion. Indeed, the counsel to the House of Representatives came to virtually the same conclusion.3 E. Miscellaneous Provisions Section 6 of the WPR sets out expedited procedures for consideration by both Houses of joint resolutions extending the time of the deployment of troops under § 5(b). Section 7 does the same for the unconstitutional concurrent resolution procedure under § 5(c). Section 8 of the WPR contains certain other miscellaneous provisions. One expressly provides that authority to introduce United States Armed Forces into § 4(a)(1) situations “shall not be inferred” from any provision of law, including any appropriations provision, “unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities .. and states that it is intended to constitute specific statutory authorization within the meaning o f’ the WPR. This provision, along with a similar provision negating any similar inferences from any treaty, are intended to preclude Executive Branch reliance for deployments of United States Armed Forces on any ambiguous statutes (including appropriations laws) or treaties.4 Thus, under § 8 the President’s authority to deploy armed forces into hostilities must be grounded in his inherent constitutional powers unless Congress has specifically provided by statute for such deployment. Subsection § 8(c) states that under the WPR the term “‘introduction of United States Armed Forces’” includes the “assignment of members of such 2 Hearings on the U.S. Supreme Court Decision Governing the Legislative Veto, before the House Comm, on Foreign Affairs, 98th Cong., 1st Sess. 63 (1983) (remarks of Deputy Attorney General SchmuUs). 3 Hearings, supra note 2, at 36 (agreeing that § 5(c) is “now presumptively invalid"). 4 Prior to the enactment of the WPR, many enactments of Congress, especially appropriations measures, could justifiably have been regarded by the Executive as constituting implied authority to continue the deployment of our armed forces in hostilities 273 armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces of any foreign country or government are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities.” II. Selected Facts, Historical Information, Analysis and Conclusions Regarding Applicability of the War Powers Resolution A. Executive Interpretation o f the Effect of WPR The Executive Branch has taken the position from the very beginning that § 2(c) of the WPR does not constitute a legally binding definition of Presiden­ tial authority to deploy our armed forces. The Department of State’s position set forth in a letter of November 30, 1973 was that § 2(c) was a “declaratory statement of policy.” Were the Executive to concede that § 2(c) represented a complete recitation of the instances in which United States Armed Forces could be deployed without advance authorization from Congress, the scope of the Executive’s power in this area would be greatly diminished.5 Any attempt to set forth all the circumstances in which the Executive has deployed or might assert inherent constitutional authority to deploy United States Armed Forces would probably be insufficiently inclusive and potentially inhibiting in an unforseen crisis. However, some efforts have been made to itemize examples of such situations. In 1975, the Legal Adviser to the Depart­ ment of State listed six non-exclusive situations in which he contended the President had constitutional authority as Commander-in-Chief to direct United States Armed Forces into combat without specific authorization from Congress: 1. To rescue Americans; 2. To rescue foreign nationals where doing so facilitates the rescue of Americans; 3. To protect U.S. Embassies and legations; 4. To suppress civil insurrection in the United States; 5.
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