Can a President Use Military Force without Congressional Approval?

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Copyright 2019 Dan Cofran

On January 3, 2019, the President unilaterally and without Congressional consultation ordered the aerial destruction of a two-car convoy leaving Baghdad International Airport carrying Iran’s most powerful military commander.

According to news sources, he was the second highest ranking Iranian government official and was the nation’s principal military planner and leader.

Congressional leaders who normally would get advance or contemporaneous notice of such an attack state they were not notified. The Secretary of State stated generally that the attack was based on the commander’s plans to attack U. S. diplomats the region.

If only Congress has the power to declare war under the Constitution, how can a President, even though he is the Commander in Chief, apparently act on his own to eliminate the top military commander of a nation so highly hostile to the United States in such a volatile setting?

Two Minute Summary

Under the Constitution, all military powers are divided between the Congress and the President. Congress has the power to declare war, by formal bill, act or resolution. The President is the Commander in Chief of the armed forces.

Up through World War II, Congress regularly used bills, acts of Congress or “joint” resolutions, presented to and signed by the President with the force of law, formally declaring war, for example, ”until successful resolution” up through World War II.

(“Joint” resolutions follow the normal “how a bill becomes a law” process and have the force of law. “Concurrent” resolutions are not presented to the President for signature. They do not have the force of law.)

However, Presidents following World War II tended to commit military resources without any Congressional authorization. For example, no Congressional bill, act or joint resolution declaring war was used for the war in Korea (it was called a “police action”).

Congress took notice during war in Vietnam. A Congressional joint resolution authorizing military force was passed in 1964 during the Johnson presidency. However, as Congressional and public frustrations grew with the war’s duration, increasing casualties and lack of progress on the ground, Congress in 1973 passed the “War Powers Resolution,” a joint resolution, also known as the “War Powers Act” after the Senate version, outlining when and under what procedures a President could take action quickly to address actual or “imminent hostilities” based on “clear circumstances.”

The goal was simply to allow the President, in consultation with Congress, the flexibility to address limited scope military threats that were becoming more common during the Cold War years.

The War Powers Resolution, in addition to limiting a President’s authority to actual or “clear, imminent” hostilities, requires advance notice and consultation with Congress, a status report to Congress within 48 hours of deployment, automatic withdrawal within 60 days unless extended 30 days by Congress, regular reports to Congress following deployment and equips Congress with a legislative veto to bring the troops home.

The War Powers Resolution was passed as a joint resolution. President Nixon, then President, vetoed the joint resolution as an unconstitutional violation of his Commander in Chief powers, but Congress overrode the veto with a 2/3s majority. Accordingly, the War Powers Resolution has the force of law.

Since then, compliance with War Powers Resolution has been spotty. Presidents are cranky about their Commander in Chief powers.

Sometimes no report has been made to Congress based on the assertion that the military personnel were not engaged in “hostilities” or that they were non-combat advisors.

The Presidency on other occasions has provided reports to Congress, but without specific reference to the War Powers Resolution, as if a voluntary act, to avoid starting the 60-day automatic removal clock.

Most recently, both Republican and Democratic administrations have relied on the 2001 and 2002 joint resolutions authorizing the use of military force (“AUMFs”) under the War Powers Resolution regarding the 9/11 terrorist attacks in 2001 and alleged Iraqi weapons of mass destruction in 2002 to justify continued military activity in the Middle East, even though the original objectives for those authorizations were met long ago.

Explanation

The Constitution. Under the Constitution, military powers are divided between the Congress and the Presidency, consistent with the Framers’ separation-of-powers plan to prevent any one person or branch from having too much power.

Only Congress has the power under the Constitution “to declare War,” whether by formal declaration or otherwise. It also has the powers to “raise and support Armies,” to “provide and maintain a Navy,” to “makes Rules for the Government and Regulation of the land and naval Forces” and to provide for related military needs. Art. I, Sec. 8, cl. 11 – 16.

On the other hand, “the President shall be Commander in Chief of the Army and Navy of the United States.” Art. II, Sec. 2.

The United States, through the Congress, has passed bills, acts of Congress or joint resolutions formally declaring war, signed by the President, a total of eleven times . . . the War of 1812, the Mexican-American War, the Spanish-American War, World War I (Germany and Austria-Hungary) and World War II (Japan, Germany, Italy, Bulgaria, Hungary, Rumania).

Since World War II, with the exception of the war in Korea for which there was no Congressional declaration of war, Congress has used joint resolutions authorizing the use of military force, but without declaring war. For example, Congress in 1964 passed a joint resolution authorizing military action for the war in Vietnam when U.S. military personnel went from being “advisors” to the South Vietnamese to active combat troops under U. S. command.

Congressional and public frustration grew as the war dragged on into the 1970s, with mounting casualties and little progress on the ground. Frustration peaked in 1973 during the Nixon administration and Congress decided to re-establish the President’s and Congress’ interdependent military responsibilities under the Constitution to avoid open-ended military commitments.

The War Powers Resolution

The War Powers Resolution confirms that the President can take military action as Commander in Chief in three situations: a formal declaration of war by joint resolution by Congress, specific statutory authorization or a national emergency created by an attack on the United States.

The War Powers Resolution also goes further and outlines circumstances under which a President can unilaterally commit armed forces to address “actual or imminent hostilities” for limited periods of time, including advance or contemporaneous notice and consultation with Congress, periodic reports and Congressional discretion to terminate the use of military force. More specifically:

Circumstances Warranting Military Force. The circumstances are limited to actual “hostilities or imminent hostilities clearly indicated . . . by the circumstances . . . against the United States, its territories, possessions or armed forces.” The key words are “actual or imminent,” “hostilities” and “clearly indicated.”

Reports to Congress. The President must provide a status report to Congress within 48 hours of deployment into actual or imminent hostilities. Reports must address the circumstances necessitating the use of military forces, the constitutional and statutory bases for use of military forces and the expected scope and duration of the involvement. Thereafter, reports at least every six months are required.

Conferring with Congress. The President “in every possible instance” must “consult with Congress before introducing U.S. Armed Forces into hostilities or imminent hostilities.” This is more than simple notice. “Consult” means confer, discuss, deliberate, etc. No “drive-by” consultations.

Automatic Withdrawal. The authorization automatically terminates upon 60 days after the 48-hour report unless Congress authorizes military action with no time limit or temporarily extends the time period for 30 days upon a showing of “unavoidable military necessity respecting the safety” of the armed forces; and

Legislative Veto. The Congress by a “concurrent” resolution at any time can direct the President to remove the military forces.

The 60-day automatic withdrawal and legislative veto by a concurrent resolution have caused most of the presidential opposition as Commander in Chief under the Constitution. All presidents since Nixon have taken this position.

The point is probably well taken, at least as to the legislative veto by a concurrent resolution. Concurrent resolutions do not have the force of law.

The Supreme Court in an immigration decision in 1983 cast doubt on the use of concurrent resolutions for mandatory actions. An effort was made in 1983 to change this from a “concurrent” resolution to a “joint” resolution with mixed Congressional reactions.

The Track Record

Presidential compliance with the War Powers Resolution has been spotty, inconsistent and partial. For the most part, presidents don’t mind providing reports to Congress. The 60-day automatic withdrawal and legislative vetoes are the problem.

For example, from 1975 through March 2017, presidents have submitted 168 reports on military actions. However, not all reports refer specifically to the War Powers Resolution, as if they were being provided for other reasons. This has been an attempt to avoid starting the 60-day clock for automatic removal, as well as the legislative veto. They either omit any reference to the War Powers Resolution or state they were submitted “consistent with” the War Powers Resolution.

Other deployments have not been reported at all, with the administration claiming “hostilities” were not present or imminent in the area, that the military personnel were only advisors without combat equipment or they were non-combatant peace keepers.

In most cases, the Congress and the President have been able to negotiate and reach uneasy compromises, at least staying out of the courts.

This tension has been going on now for over 45 years. It probably will continue for another 45 years. The Founders probably understood there would be tension between the Congress and the President, but believed that men and women of good will would somehow work their way through it on a case-by-case basis. Indeed, that is what has in fact happened in many conflicts since the War Powers Resolution was passed.

It is not clear yet whether the President in this situation followed the War Powers Resolution procedures. However, Democratic Congressional leaders, who should have been notified and consulted under the Resolution, state they had no knowledge of the operation.

Alternatively, the President may stretch and try to rely on the 9/11 and Iraqi weapons of mass destruction authorizations as past presidents have.

Either way, get ready for choppy waters ahead.