What is the War Powers Act?

    The attack was largely applauded by politicians and pundits alike. Syria's president, Bashar al-Assad, has previously used chemical weapons on his people, and there was a sense that he should brought to justice. But the U.S. response also has raised questions anew about presidential power.
    In a statement released on his website, Sen. Tim Kaine, D-Va,, formerly Hillary Clinton’s vice presidential running mate, noted, “Assad is a brutal dictator who must be held accountable for his actions. But President Trump has launched a military strike against Syria without a vote of Congress. The Constitution says war must be declared by Congress. I voted for military action against Syria in 2013 when Donald Trump was advocating that America turn its back on Assad's atrocities. Congress will work with the president, but his failure to seek Congressional approval is unlawful.”    
    Kaine is referring  to Article I of the U.S. Constitution, which gives Congress responsibility to “declare war,” and “to pay the debts and provide for the common defense and general welfare of the United States.”
    The Constitution also says this about presidential power: The "president shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States."
    In the wake of the Vietnam War (1955-1975), which ended the lives of more than 58,000 Americans, legislators sought to put qualifiers on presidential power. This led to the War Powers Act, approved by Congress over the veto of President Richard Nixon on Nov. 7, 1973. Here is a compressed account of the legislation, along with links and citations for further study:

Collective judgment: The central idea of the War Powers Act is to make sure that Congress and the president are on the same page. The law states its purpose this way: “to fulfill the intent of the framers of the Constitution of the United States and ensure that the collective judgment of both the Congress and the president will apply to the introduction of United States armed forces into hostilities.”

The president’s powers: The law also spells out how the president should use his powers: “The constitutional powers of the president as commander-in-chief to introduce United States 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) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”

Going to Congress: The president must consult with Congress before and after engagement. “The president in every possible instance shall consult with Congress before introducing United States armed forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States armed forces are no longer engaged in hostilities or have been removed from such situations.”

Reporting requirements: In another section, the law is specific about what sort of military action the president must report. “In the absence of a declaration of war, in any case in which United States armed forces are introduced—

(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;

(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or

(3) in numbers which substantially enlarge United States armed forces equipped for combat already located in a foreign nation.”
     Within 48 hours of that happening, the president must submit to the speaker of the House of Representatives a report detailing, “the circumstances necessitating the introduction of United States armed forces;… the constitutional and legislative authority under which such introduction took place; and… the estimated scope and duration of the hostilities or involvement.”

Congress reviews the reports: Congressional committees then review the reports. "Each report so transmitted shall be referred to the Committee on Foreign Affairs of the House of Representatives and to the Committee on Foreign Relations of the Senate," according to the law. 
    If Congress has adjourned "for any period in excess of three calendar days, the speaker of the House of Representatives and the president pro tempore of the Senate, if they deem it advisable (or if petitioned by at least 30 percent of the membership of their respective houses) shall jointly request the president to convene Congress in order that it may consider the report and take appropriate action..."

The limit: Within 60 days, the military should be withdrawn, "unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States armed forces, (2) has extended by law such 60-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States." 
    The two month period can be extended another 30 days if the president certifies "unavoidable military necessity" regarding the safety of the troops.

 Legal sticking point: One part of the law requires a president to remove the military "engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization," if Congress directs by concurrent resolution.  
    Concurrent resolutions, basically legislative vetoes, "are not laws and are not presented to the president for signature or veto," notes the law library of the U.S. Library of Congress. As a result of a Supreme Court decision, that part of the law is constitutionally questionable. 

Other presidents and the law: Military action is always controversial and both Republican and Democratic presidents have criticized the War Powers Act. When President George W. Bush was given congressional approval to send troops to Iraq, for example, he remarked that  "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.” (See the Congressional Research Service report.)
    Debate arose over military engagement in Libya during the presidency of Barack Obama. And while Obama has been criticized for not acting after a previous chemical attack in Syria in 2013, he actually sought (and was not granted) congressional approval to strike that country. 

    To know more:

• Bloomberg News: Obama seeks congressional approval for a Syria strike, by Margaret Talev and Terry Atlas, Sept. 1, 2013.
• Congressional Research Service: Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications, by Jennifer K. Elsea, legislative attorney, and Matthew C. Weed, analyst in foreign policy legislation, April 18, 2014. 
• Cornell Law School: Article 1, the U.S. Constitution.
• Cornell Law School: 50 U.S., Chapter 33, War Powers Resolution. 
• Library of Congress Law Library: War Powers Act.
• National Archives.gov: Vietnam statistics.
• ProPublica.org: What exactly is the War Powers Act and is Obama really violating it? by Marian Wang, June 17, 2011.
• The New York Times: How War Powers Act works, March 29, 1984. 
• Website of Sen. Tim Kaine, D-Va.: Kaine statement on military strikes in Syria, April 6, 2017.

     Related:  

     What are executive orders? 

     Versailles: A past that may be prologue

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