"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 If the resolution is not passed then the forces must be withdrawn from the combat within sixty days.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!

  

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What Is A Legal War?

Politian’s, Political Writers, and others claim that an undeclared war is an illegal war.

Are they correct?

What does the Constitution have to say on the matter and what is the History of American Wars?

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

That is all the Constitution has to say. 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 only 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' has been used for 5 events:
War of 1812 under James Madison
Mexican-American War (1836)
Spanish-American War (1898)
World War I (1914)
World War II (1942) had muliple declarations

Authorized wars, not using the term 'declaration' include:
Quasi-War (1798) under President John Adams
First Barbary War (1801)  under Thomas Jefferson
Second Barbary War (1815) under James Madison
Raid on Slave Trade (1820) under James Monroe
Retaliation on Portugal (1859)
Korea War (1870)
Philippine-American War (1898)
Intervention in Russian Revolution (1918)
Protection of Lebanon (1958)
Viet-Nam War (1964)
Multinational force in Lebanon (1983)
Invasion of Panama (1989)
Persian Gulf War (1991)
War in Afghanistan (2001)
Iraq War (2002)

The Korean War (1950) was not authorized by the U.S. Congress, but was fought under authority of a United Nation resolution.

There have also been a number of ‘Police Actions’ in which U.S. Armed Forces have been deployed, such as Clinton's use of troops in the Kosovo War.

Note that the first two wars were not 'declared' wars.  Surely, those early Presidents knew the wording and the intent of the Constitution.

Congress, after World War II, limited its own power to 'Declare War' to using 'Authorizations of Force'. The reasoning behind this action was that a ‘Declaration of War’ gave unbridled power to the President to wage war in any manner and with any weapons as he deemed appropriate. Whereas, an 'Authorizations of Force' would permit Congress to set limits.

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

The remaining question on a ‘Declaration of War’ is; Does the President, need authorization from Congress before he commits the Armed Forces to battle?

From a practical standpoint-- It can be reasoned that the Constitution grants full power to the President to wage war without prior approval of Congress.

The Constitution prohibits the states from engaging in war without the consent of Congress, unless the state is actually invaded or is in imminent danger. There are no such constitutional restrictions placed on the President

The Constitution charges the President with the protection of the nation and its citizens. One can envision many scenarios in which to fulfill that obligation the President would need to act immediately. When the Constitution was enacted Congress was part-time and could takes days or weeks to convene. It doesn't seem reasonable that the Constitution would have tied the President's hands to act for that long. Today, Congress could convene in far less time, but warfare has also changed; modern long range weapons may require the President to act in minutes.

The 'War Powers Resolution of 1973' indicates that the Congress recognizes the Presidents’ unilateral power to engage in war and with this act Congress attempts to limit that Presidential Power.

There is another serious issue. Sadly, Congress leaks like a sieve! Congress has probably always had leaks, but in the 1800’s it took weeks for a leak to spread. Today you can't tell Congress a secret because the New York Times will publish it, mainstream media will broadcast it, and it will be on the Internet before it stops echoing off the walls of the Congressional chambers.


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Send feedback to: WatchDog
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