Chapter 9 - War Powers Resolution

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Chapter 9 - War Powers Resolution
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The War Powers Resolution

• Parse each provision of the War Powers Resolution
  - figure out what each part means and be prepared
  to explain it.
• What is the purpose of the Resolution?
• What is Congress claiming about its right to
  control presidential powers?
• When can the president use troops?
• What is the ambiguity in 3?

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SECTION 3 1542. CONSULTATION

• The President in every possible instance shall
  consult with Congress before introducing United
  States Armed Forces into hostilities or into
  situations where imminent involvement in
  hostilities is clearly indicated by the
  circumstances, and after every such introduction
  shall consult regularly with the Congress until
  United States Armed Forces are no longer engaged
  in hostilities or have been removed from such
  situations.

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Consultation with Congress

• What does Congress want consultation to mean?
• What do presidents think it means?

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SECTION 4 1543. REPORTING REQUIREMENT

• (a) In the absence of a declaration of war, in
  any case in which United StatesArmed Forces are
  introduced(1) into hostilities or into
  situations where imminent involvement
  inhostilities is clearly indicated by the
  circumstances(2) into the territory, airspace
  or waters of a foreign nation, whileequipped for
  combat, except for deployments which relate
  solely to supply,replacement, repair, or
  training of such forces or(3) in numbers which
  substantially enlarge United States Armed
  Forcesequipped for combat already located in a
  foreign nationthe President shall submit within
  48 hours to the Speaker of the House
  ofRepresentatives and to the President pro
  tempore of the Senate a report, inwriting,
  setting forth(A) the circumstances
  necessitating the introduction of United
  StatesArmed Forces(B) the constitutional and
  legislative authority under which such
  introductiontook place and(C) the estimated
  scope and duration of the hostilities or
  involvement.

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Reporting - Continuing duty

• (b) The President shall provide such other
  information as the Congress may request in the
  fulfillment of its constitutional
  responsibilities with respect to committing the
  Nation to war and to the use of United States
  Armed Forces abroad.
• (c) Whenever United States Armed Forces are
  introduced into hostilities or into any situation
  described in subsection (a) of this section, the
  President shall, so long as such Armed Forces
  continue to be engaged in such hostilities or
  situation, report to the Congress periodically on
  the status of such hostilities or situation as
  well as on the scope and duration of such
  hostilities or situation, but in no event shall
  he report to the Congress less often than once
  every six months.

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Reporting

• What triggers reporting?
• Who does the president report to?
• What must the report contain?
• Is this a continuing duty to report?
• What does Congress do with the report?

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When Must the President Report?

• What is the clock that the report starts ticking?
• How long is it?
• What is supposed to happen if Congress does not
  act before the clock runs out?
• What tolls the clock, allowing the troops to stay?

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SECTION 5 1544. CONGRESSIONAL ACTION

• (a) Each report submitted pursuant to section
  1543(a)(1) of this title shall be transmitted to
  the Speaker of the House of Representatives and
  to the President pro tempore of the Senate on the
  same calendar day. Each report so transmitted
  shall be referred to the Committee on Foreign
  Affairs of the House of Representatives and to
  the Committee on Foreign Relations of the Senate
  for appropriate action. If, when the report is
  transmitted, the Congress has adjourned sine die
  or has adjourned for any period in excess of
  three calendar days, the Speaker of the House of
  Representatives and the President pro tempore of
  the Senate, if they deem it advisable (or if
  petitioned by at least 30 percent of the
  membership of their respective Houses) shall
  jointly request the President to convene Congress
  in order that it may consider the report and take
  appropriate action pursuant to this section.

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SECTION 5 1544. CONGRESSIONAL ACTION

• (b) Within sixty calendar days after a report is
  submitted or is required to be submitted pursuant
  to section 1543(a)(1) of this title, whichever is
  earlier, the President shall terminate any use of
  United States Armed Forces with respect to which
  such report was submitted (or required to be
  submitted), unless the Congress (1) has declared
  war or has enacted a specific authorization for
  such use of United States Armed Forces, (2) has
  extended by law such sixty-day period, or (3) is
  physically unable to meet as a result of an armed
  attack upon the United States. Such sixty-day
  period shall be extended for not more than an
  additional thirty days if the President
  determines and certifies to the Congress in
  writing that unavoidable military necessity
  respecting the safety of United States Armed
  Forces requires the continued use of such Armed
  Forces in the course of bringing about a prompt
  removal of such forces.

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SECTION 5 1544. CONGRESSIONAL ACTION

• (c) Notwithstanding subsection (b) of this
  section, at any time that United States Armed
  Forces are engaged in hostilities outside the
  territory of the United States, its possessions
  and territories without a declaration of war or
  specific statutory authorization, such forces
  shall be removed by the President if the Congress
  so directs by concurrent resolution. Sections 6
  7, 1545-1546, Congressional Priority
  Procedures for Joint Resolution or Bill, and for
  Concurrent Resolution, respectively, provide for
  expedited consideration of measures to approve
  the Presidents actions under 1544(b) or
  disapprove them under 1544(c).

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SECTION 8 1547. INTERPRETATION OF JOINT
RESOLUTION

• (a) Authority to introduce United States Armed
  Forces into hostilities or into situations
  wherein involvement in hostilities is clearly
  indicated by the circumstances shall not be
  inferred(1) from any provision of law (whether
  or not in effect before November 7, 1973),
  including any provision contained in any
  Appropriation Act, unless such provision
  specifically authorizes the introduction of
  United States Armed Forces into hostilities or
  into such situations and states that it is
  intended to constitute specific statutory
  authorization within the meaning of this chapter
  or(2) from any treaty heretofore or hereafter
  ratified unless such treatyis implemented by
  legislation specifically authorizing the
  introduction of United States Armed Forces into
  hostilities or into such situations and stating
  that it is intended to constitute specific
  statutory authorization within the meaning of
  this chapter.

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Savings Clause

• (d) Nothing in this chapter
• (1) is intended to alter the constitutional
  authority of the Congress or of the President, or
  the provisions of existing treaties or
• (2) shall be construed as granting any authority
  to the President with respect to the introduction
  of United States Armed Forces into hostilities or
  into situations wherein involvement in
  hostilities is clearly indicated by the
  circumstances which authority he would not have
  had in the absence of this chapter.

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Is it Worth Talking to Congress?

• Other critics ask what good it would do to
  consult with Congress about most questions of
  national security or foreign relations its
  members are allegedly parochial, partisan, poorly
  informed, preoccupied with re-election, and, in a
  word, collectively unwise about national security
  and foreign affairs. Indeed, involving them may
  effectively amount only to involving their
  staffs, with a substantially increased risk of
  leaks that will compromise national security.
  See, e.g., Robert F. Turner, Repealing the War
  Powers Resolution 110 (1991). If this critique is
  correct, does it bear on the constitutionality of
  the

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Effect on Treaties

• How does it attempt to turn all mutual defense
  treaties into non-self-executing treaties?
• Is there a constitutional problem with this?
• What treaty military actions did it leave
  unaffected?
• unless such treaty is implemented by legislation
  specifically authorizing the introduction of
  United States Armed Forces into hostilities or
  into such situations and stating that it is
  intended to constitute specific statutory
  authorization within the meaning of this joint
  resolution.

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The Veto

• Why did Nixon veto the War Powers Resolution?
• Did it pass anyway?
• Why did Nixon's veto undermine the original
  intent of the resolution?
• Why did Nixon say it would undermine the
  president's ability to conduct foreign policy?
• Have any subsequent presidents agreed to be bound
  by it?
• What did Clinton do that violated it?

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Strategic and Constitutional Issues

• How might it encourage an enemy to keep fighting?
• Why is the 60 day clock a constitutional problem?
• Why is this exactly why Congress wanted it?
• Why doesn't Congress want to vote on cutting off
  presidential action?
• What was the first WPR report?
• What was the "tanker war"?

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Lowry v. Reagan, 676 F. Supp. 333 (D.D.C. 1987)

• Tanker war started in 1987, not 88 - type in book
• Who did the plaintiffs represent?
• What did the plaintiff say was the effect of the
  president failing to file a report about the
  tanker war?

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Statutory Problems

• What did the court say was missing in the Act
  that made it impossible to resolve the case?
• First, and most importantly, the very absence of
  a definitional section in the Resolution, coupled
  with debate suggesting that determinations of
  hostilities were intended to be political
  decisions made by the President and Congress,
  suggest to this Court that fixed legal standards
  were deliberately omitted from this statutory
  scheme.
• Without out this, who did the court say would
  have do decide if the act was triggered?

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Koohi v. United States, 976 F.2d 1328 (9th Cir.
1992) - FTCA

• Who are the plaintiffs?
• Why aren't they blocked by this exception
  (k) Any claim arising in a foreign country. ?
• Why doesn't the US claim it was a discretionary
  action?
• What exception is the court reviewing?
• Acts of War
• What did Lowry say about the court deciding if
  there were hostilities going on?
• What did this court say?
• Are they answering the same question?

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Crockett v. Reagan, 558 F. Supp. 893, 901 (D.D.C.
1982), affd, 720 F.2d 1355 (D.C. Cir. 1983)

• What did the court say about whether courts
  should be ordering the president to pull out
  troops?
• What are the problems with a court-ordered troop
  withdrawal?
• Should the court assume that a majority of
  Congress opposed the use of force?

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Is the WPR Just Political Cover The Free Pass

• The defect at the heart of the WPR is that it
  has given both the President and Congress a
  putative free pass. In the actual contemporary
  exercise of war powers, perception has become
  reality as both the media and many members of
  Congress overlook the WPRs disclaimer of
  authority 8(d)(2), 50 U.S.C. 1547(c)(2)
  (2000). Thus, some proponents of unilateral
  presidential action invoke the putative sixty-day
  free pass as license to use force abroad without
  constitutionally required advance authorization
  from Congress. Congress, for its part, takes
  false comfort that it has somehow fulfilled its
  constitutional duty to decide on uses of force
  abroad by doing nothing.

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Should/Could Congress revise the War Powers
Resolution to make it more effective?