Mary Baldwin College, Staunton VA 24401
by Prof. Gordon L. Bowen, Ph.D.
Public Law 93-148
The Vietnam War, and the overall growth of executive power in foreign policy it represented, engendered a strong reassertion of Congressional powers in the early 1970s. The War Powers Resolution was one of the key pieces in this process.
In reporting to the Senate this legislation the authors formally stated that the purpose of the law was: "...to prevent secret, unauthorized military support activities and to prevent a repetition of many of the most controversial and regrettable activities in Indochina" (quoted in Wormuth: 249). The War Powers Resolution passed Congress in October 1973. After having vigorously opposed several pieces of legislation on the question at every turn (Nixon Papers), and feeling it excessively to restrict the powers he assumed to be inherent in the office of the presidency, Pres. Richard Nixon vetoed the bill on October 24, 1973. However, the bill nevertheless was passed a second time on November 7, 1973, over-riding the constitutional power of presidential veto.
Count the votes: The vote was 284 to 135 in the House (67.7% of the House; 4 members more than the 2/3 of those voting required by the Constitution), and 75 to 18 in the Senate (13 members more than the Constitution required). As such, the War Powers Resolution is a misnomer: it is a U.S. law, not a mere resolution.
Its key provisions are (link to complete text):
"Sec 2c.: The Constitutional powers of the President as Commander-in-Chief to introduce U.S. Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) statutory authorization, or (3) a national emergency created by attack upon the US, its territories or possessions, or its armed forces.
Sec. 3.: The President in every possible instance shall consult with Congress before introducing U.S. Armed Forces into hostilities or situations where imminent involvement in hostilities is clearly indicated...
Sec. 4a. In the absence of a declaration of war, in any case ...the President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth:
A. the circumstances necessitating the introduction of U.S. Armed Forces;
B. the Constitutional and legislative authority under which such introduction took place; and
C. the estimated scope and duration of the hostilities or involvement.
...5b. Within 60 calendar days after a report is submitted or is required to be submitted... the President shall terminate any use of U.S. Armed Forces... unless the Congress (1) had declared war or has enacted a specific authorization for such use of U.S. Armed Forces, (2) has extended by law such 60 day period, or (3) is physically unable to meet... Such 60 day period shall be extended for not more than an additional 30 days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of U.S. Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces...
5c. Notwithstanding subsection b., at any time that U.S. Armed Forces are engaged in hostilities outside the territory of the US... 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...
Gordon L. Bowen, "War Powers Resolution," The Seventies in America (Pasadena, CA: Salem Press, 2006).
Louis Fisher, Constitutional Conflicts Between Congress and the President (Princeton NJ: Princeton UP, 1985).
Louis Fisher, The Politics of Shared Power (Washington DC: CQ Press, 1993): 157-166.
Louis Fisher. Presidential War Power (Lawrence, KS: University Press of Kansas, 1995).
Nixon papers: A partial record of internal Nixon Administration documents on the War Powers legislative history, 1969-72, including their strategic assessments of the prospects for various pieces of preliminary draft bills pointing toward the ultimate legislation on the war powers matter, appears in: "The Nixon Administration and War Powers Legislation," Foreign Relations of the United States, 1969-1976, v. 2: 832-853. http://www.state.gov/documents/organization/77859.pdf Discussion of passage of the actual law, deliberations on the veto, and reaction to the over-ride of the Nixon veto, are not presented in the official history.
Francis D. Wormuth and Edwin B. Firmage, To Chain the Dog of War: The War Power of Congress in History and Law (Dallas TX: Southern Methodist University Press, 1986).
Complete text of the War Powers Resolution is to be found at the Avalon Project (Yale University School of Law).
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