Is the War Powers Resolution unconstitutional?

[CoolHandCox]

@BrightNShiny

Let’s look at the 1994 Defense Authorization Act:. Now, it’s true that this doesn’t include a specific WPR authorization, but this language lays out another form of authorization for the continuation of forces in Somalia. I suppose it doesn’t explicitly state that the deployment up until that point is okay, but it remarks on the US forces “significant contributions,” so it’s not a statement of disapproval. This is what I mean by fig-leaf authorization. It’s not the way I would like things to be run, but the bill acknowledges the deployment and puts new restrictions and reporting requirements on the deployment, and in my view that amounts to a retroactive authorization.

This “authorization” was made when the situation in Somalia went from peacekeeping (make sure the hungry get our food) to regime change (let’s kill the people stealing the food and making everyone hungry). Basically.

All Sec. 1512 (you’re quote) appears to be saying is now the President needs Congressional authorization because of this change in the way the military is going to be used in Somalia (peacekeeping stuff to Black Hawk Down stuff). I don’t see any approval of the use of forces; instead the President needs to “seek and receive congressional authorization [by Nov 15, 1993] in order for the deployment of United States forces to Somalia to continue.”

According to Ravenman’s list of all the Authorizations, that did not happen. However, we started to pull out fairly soon after Black Hawk Down occurred (Oct. 3/4, 1993), so that’s likely the reason. But if by fig-leaf you just mean Congress is aware of the use of forces, then while I don’t agree with that characterization of a retroactive authorization, I acknowledge your point.

[Saint_Cad]

Isn’t part of the problem with the WPA that Congress neglects its duty to be the sole determiner of when this country is at war? I understand that the President qua Commander-in-Chief needs a little freedom to back up American interests with military force, but we have been in Iraq/Afghanistan for how long without an overt declaration of war? I keep seeing in threads about how Bush Junior put us in Iraq but isn’t that with Congress’ approval and funding? Don’t the legislators need to ball-up and take responsibility for saying yes we are at war or no we are not?

[Ravenman]

@Saint_Cad

Isn’t part of the problem with the WPA that Congress neglects its duty to be the sole determiner of when this country is at war?

I’d say that the problem is the opposite: it is difficult for the Congress to assert that we should NOT be at war, or that we should not go to war. There is always the option of cutting off funds, but that is a politically charged tool to use: “Why would Congress undermine funding for the troops?”

I understand that the President qua Commander-in-Chief needs a little freedom to back up American interests with military force, but we have been in Iraq/Afghanistan for how long without an overt declaration of war? I keep seeing in threads about how Bush Junior put us in Iraq but isn’t that with Congress’ approval and funding? Don’t the legislators need to ball-up and take responsibility for saying yes we are at war or no we are not?

There are congressional authorizations for the use of military force in Iraq and Afghanistan. Both wars are in perfect compliance with the War Powers Resolution. There is no point to declaring war in either country, the constitutional requirements have been fully met.

The issue of Iraq doesn’t focus on whether or not Congress authorized the war, as it clearly did. The issue is more like that Congress voted to authorize the war based on flawed intelligence, which some people (but not me) believe was the result of lies by the Bush Administration. But no matter how you slice it, Congress authorized a stupid war in full compliance with its constitutional powers.

[UltraVires]

Here is my thought: Congress passed the treaty that made us a member of the U.N. The U.N. authorized force against Libya. Therefore, Congress authorized force against Libya, no?

[BrightNShiny]

@jtgain

Here is my thought: Congress passed the treaty that made us a member of the U.N. The U.N. authorized force against Libya. Therefore, Congress authorized force against Libya, no?

No. There’s nothing in any of our agreements with the UN that amounts to a congressional authorization to use force to support UN resolutions. The UN charter allows member nations to make a special treaty with the UN (an Article 43 treaty) which does allow the UN to basically call on the member nations forces. But we never signed an Article 43 treaty.

The arguments bandied about on UN authorization are basically historical gloss arguments. They’re not explicit congressional authorization arguments.

EDIT: I mean, there’s no general on-going general Congressional authorization. Congress has in the past authorized forces for a specific UN resolution.

[Lust4Life]

@CoolHandCox

It’s actually the big elephant sitting in the WPR room. You’re correct that the WPR cites attack against the US, authorization from Congress, or declaration of war from Congress as the only time the President may constitutionality commit troops to hostilities. Everything else then must be unconstitutional (according to the WPR).

So there’s two realities. Let’s use Libya. Either Obama acted unconstitutionally/in violation of the statute the day he committed troops to Libya (because no attack against US, no authorization, no declaration of war) or there was a constitutional right for Obama to commit the troops to Libya that the WPR does not cite (leaving sec 1547(d)(1) aside). Either way sinks the WPR. If we use your way (the WPR’s way), Congress is in effect validating the President’s (unconstitutional) right to do what he did without their previously authorizing it and every time it happens only strengthens the President’s right to do it. Or, the President, through Supreme Court rulings, already has a constitutional right to commit troops in the manner he did. And statutes cannot take away a constitutional right. Obama stated he had a constitutional right to commit the troops to Libya.

So, by dealing with the reality of the time when the WPR was written (President’s committing troops to hostilities without Congressional approval), Congress did as much as they could with the WPR. But it likely backfired by acknowledging the President could and would act without Congress and Congress validates this by* later *authorizing the President’s actions.

For the record, the President has constitutional powers that the WPR does not explicitly acknowledge (but hints at in 1547(d)); that same section also does try to say you can’t infer the WPR adds gloss (as described above) to the President’s powers…but it really doesn’t work that way; I would say the Supreme Court decides that, not early 1970’s Congress.

A friend of mine was in Libya very recently.

So when are the Americans going to actually turn up ?

Particulary on the ground.

[CoolHandCox]

@Lust4Life

A friend of mine was in Libya very recently.

So when are the Americans going to actually turn up ?

Particulary on the ground.

I’m not sure what you’re getting at. I don’t think Americans will turn up on the ground in a military capacity. Not outside rescuing other Americans at least.

[BrightNShiny]

@CoolHandCox

But if by fig-leaf you just mean Congress is aware of the use of forces, then while I don’t agree with that characterization of a retroactive authorization, I acknowledge your point.

Yeah, that’s more-or-less what I mean by “fig-leaf.” A congressional acknowledgement of the use of force, without language requiring a cessation of the use of force. Again, not my preferred way to run things, but there it is.

So, IMO, with the Somalia resolution, Clinton would have had fig-leaf authorization until November 15, 1993. Subsequent actions to that date would only be okay if they came another another power (such as using force defensively to facilitate an orderly pull out).

Man, this stuff is complicated.