Power of Congress to Control President

The Power of Congress to Control the President's Discretion

Over the President's veto, Congress enacted the War Powers Resolution,1 designed to redistribute the war powers between the President and Congress. Although ambiguous in some respects, the Resolution appears to define restrictively the President's powers, to require him to report fully to Congress upon the introduction of troops into foreign areas, to specify a maximum time limitation on the engagement of hostilities absent affirmative congressional action, and to provide a means for Congress to require cessation of hostilities in advance of the time set.

More about Power of Congress to Control President

The Resolution states that the President's power to commit United States troops into hostilities, or into situations of imminent involvement in hostilities, is limited to instances of (1) a declaration of war, (2) a specific statutory authorization, or (3) a national emergency created by an attack on the United States, its territories or possessions, or its armed forces.2 In the absence of a declaration of war, a President must within 48 hours report to Congress whenever he introduces troops (1) into hostilities or situations of imminent hostilities, (2) into a foreign nation while equipped for combat, except in certain nonhostile situations, or (3) in numbers which substantially enlarge United States troops equipped for combat already located in a foreign nation.3 If the President introduces troops in the first of these three situations, then he must terminate the use of troops within 60 days after his report was submitted or was required to be submitted to Congress, unless Congress (1) has declared war, (2) has extended the period, or (3) is unable to meet as a result of an attack on the United States, but the period can be extended another 30 days by the President's certification to Congress of unavoidable military necessity respecting the safety of the troops.4 Congress may through the passage of a concurrent resolution require the President to remove the troops sooner.5 The Resolution further states that no legislation, whether enacted prior to or subsequent to passage of the Resolution will be taken to empower the President to use troops abroad unless the legislation specifically does so and that no treaty may so empower the President unless it is supplemented by implementing legislation specifically addressed to the issue.6

Power of Congress to Control President: Developments

Aside from its use as a rhetorical device, the War Powers Resolution has been of little worth in reordering presidentialcongressional relations in the years since its enactment. All Presidents operating under it have expressly or implicitly considered it to be an unconstitutional infringement on presidential powers, and on each occasion of use abroad of United States troops the President in reporting to Congress has done so “consistent[ly] with” the reporting section but not pursuant to the provision.7 Upon the invasion of Kuwait by Iraqi troops in 1990, President Bush sought not congressional authorization but a United Nations Security Council resolution authorizing the use of force by member Nations. Only at the last moment did the President seek authorization from Congress, he and his officials contending that he had the power to act unilaterally.8 After intensive debate, Congress voted, 250 to 11 in the House of Representatives and 53 to 46 in the Senate, to authorize the President to use United States troops pursuant to the U.N. resolution and purporting to bring the act within the context of the War Powers Resolution.9

Other Aspects

By contrast, President George W. Bush sought a resolution from Congress in 2002 to approve the eventual invasion of Iraq before seeking a U.N. Security Council resolution, all the while denying that express authorization from Congress, or for that matter, the U.N. Security Council, was necessary to renew hostilities in Iraq. Prior to adjourning for its midterm elections, Congress passed the Authorization for Use of Military Force against Iraq Resolution of 2002,10 which it styled as “specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.” On signing the measure, the President noted that he had sought “an additional resolution of support” from Congress, and expressed appreciation for receiving that support, but stated, “my request for it did not, and my signing this resolution does not, constitute any change in the long-standing positions of the executive branch on either the President's constitutional authority to use force to deter, prevent, or respond to aggression or other threats to U.S. interests or on the constitutionality of the War Powers Resolution.” 11 In the Bush administration's view, the primary benefit of receiving authorization from Congress seems to have been the message of political unity it conveyed to the rest of the world rather than the fulfillment of any constitutional requirements.

Other Issues

Although there is recurrent talk within Congress and without as to amending the War Powers Resolution to strengthen it, no consensus has emerged, and there is little evidence that there exists within Congress the resolve to exercise the responsibility concomitant with strengthening it.12

Resources

References

This text about Power of Congress to Control President is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

Notes

[Footnote 1] Pub. L. 93-148, 87 Stat. 555, 50 U.S.C. §§ 1541-1548. For the congressional intent and explanation, see H. REP. NO. 93-287, S. REP. NO. 93-220, and H. REP. NO. 93-547 (Conference Report), all 93d Congress, 1st sess. (1973). The President's veto message is H. Doc. No. 93-171, 93d Congress. 1st Sess. (1973). All this material is collected in The War Powers Resolution: Relevant Documents, Reports, Correspondence, House Committee on Foreign Affairs, 103d Cong., 2d Sess. (Comm. Print) (GPO: 1994), 1-46. For a narrative account of passage and an assessment of the disputed compliance to date, from the congressional point of view, see The War Powers Resolution, A Special Study of the House Committee on Foreign Affairs, 102d Cong., 2d Sess. (Comm. Print) (GPO: 1982).

[Footnote 2] 87 Stat. 554, 2(c), 50 U.S.C. § 1541(c).

[Footnote 3] 50 U.S.C. § 1543(a).

[Footnote 4] 50 U.S.C. § 1544(b).

[Footnote 5] Id. at § 1544(c). It is the general consensus that, following INS v. Chadha, 462 U.S. 919 (1983), this provision of the Resolution is unconstitutional.

[Footnote 6] 50 U.S.C. § 1547(a).

[Footnote 7] See the text of the reports in The War Powers Resolution: Relevant Documents, Reports, Correspondence, supra at 47 (Pres. Ford on transport of refugees from Danang), 55 (Pres. Carter on attempted rescue of Iranian hostages), 73 (Pres. Reagan on use of troops in Lebanon), 113 (Pres. Reagan on Grenada), 144 (Pres. Bush on Panama), 147, 149 (Pres. Bush on Persian Gulf), 189 (Pres. Bush on Somalia), 262 (Pres. Clinton on Haiti).

[Footnote 8] See Crisis in the Persian Gulf Region: U.S. Policy Options and Implications: Hearings Before the Senate Committee on Armed Services, 101st Cong., 2d Sess. (1990), 701 (Secretary Cheney) (President did not require “any additional authorization from the Congress” before attacking Iraq). On the day following his request for supporting legislation from Congress, President Bush, in answer to a question about the requested action, stated: “I don't think I need it. . . . I feel that I have the authority to fully implement the United Nations resolutions.” 27 WEEKLY COMP. PRES. DOC. 25 (Jan. 8, 1991).

[Footnote 9] Pub. L. 102-1, 105 Stat. 3 (1991).

[Footnote 10] Pub. L. 107-243; 116 Stat. 1498 (2002). The House approved the resolution by a vote of 296-133. The Senate passed the House version of H.J. Res. 114 by a vote of 77-23.

[Footnote 11] See President's Statement on Signing H.J. Res. 114, Oct. 16, 2002, available at [http://usinfo.state.gov/dhr/Archive/2003/Oct/09-906028.html].

[Footnote 12] See, on proposals to amend and on congressional responsibility, J. ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH (1993).