What is the War Powers Resolution?

0:04The War Powers Resolution is passed in the wake of the Vietnam War. There's a sense on the part of some congressmen, that the president is starting wars without congressional authorization. In point of fact, there's a Gulf of Tonkin resolution that authorizes the president to use force in the Vietnam War. But I think some congressmen are upset that the President has bombed Cambodia and Laos and that they are not covered by the Gulf of Tonkin resolution.

0:30They proposed a War Powers bill that purports to lay down the Congressional view about the president's constitutional powers as Commander in Chief. They say the president can only use military force pursuant to a declaration of war and authorization to use military force or where the territory or possessions of the United States are under attack, or where the military assets of the United States are under attack, and no other circumstances the president to use military force. For instance, if Great Britain is attacked and no Americans are attacked, then the President can't use military force to defend Great Britain. He would have to need to come to Congress. They saved this constitutional principle, and then they create other rules that are designed to enforce it. One of the rules is if American troops are introduced into a state of hostilities, the president has to notify Congress and then report

1:20to Congress this introduction into hostilities. If Congress doesn't approve of their use, either via declaration of war or an authorization to use military force, the President has to withdraw them basically within 90 days. The thought is, we don't want you to continue to use military force without our approval, so you have to withdraw it. Nixon looked at this bill and said it was unconstitutional because it constrained his authority as Commander in Chief, he believed that the President could, basically, use military force and that Congress couldn't stop him, and that the only way that they could do that is by some, maybe some appropriation rider. You no longer can use money in this conflict. They couldn't pass a statute beforehand and ex ante limitation. The statute passed despite his veto, and it was on the books, and it's governed executive branch practice ever since.

2:06There has been controversies as to whether or not the executive branch has complied. Most recently, there was a question about whether the bombing of Libya complied with the War Powers Act. The Obama administration took the position that bombing Libya did not constitute American forces in hostilities. As one person put it, they were above the hostilities, not in the hostilities, therefore, the War Powers Act didn't apply and therefore the 90-day window did not apply. There's a question about whether the War Powers Resolution has curved the appetite of the executive to use troops overseas, to station troops overseas in harm's way or also to wage war. Many people say it's been a failure because they point to Libya and other conflicts where the President used military force. It's possible that it is a failure,

2:51but you have to ask the counterfactual, how many more uses of military force by the President would there have been, had there not been a War Powers Act? In other words, the fact that people commit murder is no argument that the murder statute doesn't work. It just might not work perfectly. The same could be true for the War Powers Act, but it still might be deterring some uses of military force, even if it doesn't deter all uses of military force that the authors of the War Powers Act would regard as unconstitutional.