"War Powers Act" Is Not Constitutional

The Congress has announced that it is suing Barack Obama for violation of the “War Powers Act”, because of our involvement in Libya.  Mr. Obama argues that the Act does not apply to this situation, for a number of reasons.  All of those reasons make little sense.   The real question is about the constitutionality of the Act.

So what is the “War Powers Act”? 

The War Powers Act is a law passed by Congress after the Vietnam War which seeks to define and limit the powers of the president of the United States to command the armed forces into combat without Congressional approval.

President Nixon's vetoed the Act which he felt of “dubious constitutionality”. Congress over road the veto and the Act became Law.

The most important provision is that if the U.S. armed forces go into combat the president must get a resolution from Congress authorizing the mission. If the resolution is not passed then the forces must be withdrawn from the combat within sixty days. Since it was passed no president has ever acknowledged its validity but they have always, with exception of Bill Clinton in Kosovo, complied with it.

Is the “War Powers Act” constitutional?

It is quite clear that the Constitution makes the President the Commander-in-Chief of all of the armed forces.  

It is equally clear that only the Congress can declare war; and also that Congress has the power of the purse for fighting any war.  Either House can refuse to appropriate the monies needed to fight.  However, stopping funds that have already been appropriated will require a veto proof vote in both the House and the Senate.  

Nothing else on the matter of war is spelled out. 

The argument over how much control Congress has over the Presidents power to wage war first became an issue during the Jefferson presidency.  Mr. Jefferson sent the Navy (which included the Marines) to Mediterranean Sea to fight the Barbary Pirates (who were Muslim) and put an end to their acts of piracy on merchant shipping.  Congress was opposed and refused to appropriate monies for the endeavor.

Jefferson reasoned that the ships and their crews were an ongoing everyday expense and were not therefore in need of addition funding.  His only expenses were therefore, the repair of our ships, gun powder / shot, and wounded or lost men.  All of which he paid for with training and general funds (now known as discretionary funds).  One has to believe that Jefferson knew and followed the powers granted to him via the Constitution.  For more on this subject, go HERE.

It matters very little if the court sides with the argument that the President has virtually unlimited power to wage war or it the court sides with those that argue that Congress must grant permission for the President to engage in war: the “War Powers Act” is on its face, unconstitutional!

If the President has vast powers to wage war, the Act is an attempt to constrain power granted by the Constitution, without a Constitutional amendment.  That is not legal!

If the President cannot wage war without the approval of Congress, the Act is an attempt to grant power to the President that is not granted by the Constitution, without a Constitutional amendment.  That too is illegal!

It is hard to imagine a decision by the Supreme Court that would let the “War Powers Act” stand as law!

  

Comments are invited!

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Legal Declarations Of War

Article One, Section Eight of the U.S. Constitution says 'Congress shall have power to.. declare war'

That is all it says. No specific format or terminology is defined or specified, nor is the term "Declaration of War" found anywhere in the Constitution.

Furthermore, despite the constitutional requirement that Congress declare war, it does not require that a war must be declared. In practice, throughout history the United States has fought wars based on 'authorizations' and only used the term 'Declare War' at the specific request of the President.

The term 'Declaration of War' have been used for 5 events, the War of 1812, the Mexican-American War, the Spanish-American War, World War I, and World War II.

Authorized wars, not using the term 'declaration' date all the way back to the Quasi-War (1798) under President John Adams and continue with the First Barbary War (1801), Second Barbary War (1815), the Raid on Slave Trade (1820), Retaliation on Portugal (1859), Korea (1870), Philippine-American War (1898), Intervention in Russian Revolution (1918), Protection of Lebanon (1958), Viet-Nam (1964), Multinational force in Lebanon (1983), Invasion of Panama (1989), Persian Gulf War (1991), War in Afghanistan (2001), and the Iraq War (2002).

The Korean War was not authorized by the U.S. Congress, but was fought under authority of a United Nation resolution.

Congress, after World War II, limited its own power to 'Declare War' to using 'Authorizations of Force'.

The 'War Powers Resolution of 1973' limits the power of the President to wage war.

The act clearly defines how many soldiers can be deployed, and for how long without approval of Congress. The constitutionality of this act has never been decided, but with the sole exception of President Clinton's use of troops in the air campaign during the Kosovo War, all Presidents have received Congressional authorization as required under the act.

The wording of the Constitution and the historical actions of Congress indicate that any Act, either 'Declared' or 'Authorized', that provides funding and approves the use of deadly force meets the requirements of 'Legality' for the President of the United States to wage war.