Almon Leroy Way, Jr.
J. THE WAR POWERS ACT OF 1973--KEY PROVISIONS:
Passage of the War Powers Act of 1973, also known as "Public Law 93-148" and the "War Powers Resolution," was a major move by Congress in its revolt against independent presidential war-making and the body of political and constitutional theory undergirding the practice--presidential prerogative theory and a very broad construction of the President's constitutional powers as Commander-in-Chief. At this point, I think, an examination of key provisions provisions of the War Powers Act is in order and would be helpful. We will take a look at the Act's stated purpose and rationale as well as the legal obligations and restric- tions the statute imposes on the President.
1. Purpose & Rationale of the War Powers Act
The purpose and underlying rationale of the War Powers act are stated in Section 2 of the Act. Section 2 declares that--
2. Consultation Requirements under the War Powers Act
Section 3 of the War Powers Act provides:
3. Reporting Requirements Under the War Powers Act
Section 4(a) of the Act requires the President to report to Congress, providing it with information regarding (1) the circumstances necessitating the introduction of the U.S. Armed Forces, (2) the constitutional and statutory authority under which introduction of the Armed Forces took place, and (3) the estimated scope and duration of the hostilities or involvement. Section 4(b) requires the President to--
Section 4(c) makes these reporting requirements applicable to every case in which the U.S. Armed Forces, in the absence of a congressional declaration of war, are introduced--
As long as the Armed Forces continue to be engaged in hostilities or involved in any situation described above, the President is legally obligated to--
4. The War Powers Act & Restrictions on Presidential Action
Sections 2(c) and 5(b) of the War Powers Act establish three conditions, the existence of any one of which authorizes the President to introduce U.S. military forces into foreign hostilities or into a situation where imminent involvement of American troops in foreign hostilities is clearly indicated. These two provisions of the statute limit presidential war-making to the three conditions. The President can legally commit the U.S. Armed Forces to hostilities or potentially hostile situations abroad only (1) after a congressional declaration of war, (2) by an existing congressional statute or resolution granting specific authorization, or (3) in a national emergency caused by a foreign attack on the U.S.A., its territories or possessions, or its military forces. On committing American troops under the third condition, the President must, within forty-eight hours after initiating military action, submit a formal report to Congress.
Section 5(b) of the Act provides that, within sixty calender days after a report is submitted or is required to be submitted pursuant to Section 4, whichever is earlier, the President shall--
Section 5(b) further provides:
Section 5(c) provides that, notwithstanding the provisions of Section 5(b)--
In summary, Section 5 of the War Powers Act recognizes the constitutional authority of the President to initiate limited U.S. military action abroad without first securing the formal consent of Congress. The President, however, is required to file a formal report to Congress no later than forty-eight hours after undertaking such military action. The military action is limited to sixty days, unless Congress grants a thirty-day extension after the President has certified that the safety of the troops necessitates their continued deployment. For the President to legally continue the military action beyond the ninety days, he must have prior congressional approval, either through a declaration of war or through a statute or joint resolution granting specific authorization to continue the military action. At any time before the foregoing time limits, Congress may, through passage of a concurrent resolution not subject to presidential veto, require the President to withdraw the Armed Forces from hostilities abroad.
Finally, the War Powers Act was intended to curb the President's use of the United Nations Charter and other other treaties as a means of developing and exercising an independent war-making power. Section 8(a)(2) of the Act provides:
Presidential authority to engage U.S. military forces in armed combat abroad is not to be inferred from any treaty to which the U.S.A. is a party, unless congressional legislation implementing the treaty (1) specifically authorizes the President to take such action and (2) expressly states that the intent of the legislation is to grant such authorization.
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