Concerning the war powers of Congress and the President

[ProSense]

The War Powers Resolution

Public Law 93-148
93rd Congress, H. J. Res. 542
November 7, 1973

Joint Resolution

Concerning the war powers of Congress and the President.

Resolved by the Senate and the House of Representatives of the United States
of America in Congress assembled,

SHORT TITLE

SECTION 1. This joint resolution may be cited as the "War Powers Resolution".

PURPOSE AND POLICY

SEC. 2. (a) It is the purpose of this joint resolution to fulfill the intent
of the framers of the Constitution of the United States and insure that the
collective judgement of both the Congress and the President will apply to the
introduction of United States Armed Forces into hostilities, or into
situations where imminent involvement in hostilities is clearly indicate by
the circumstances, and to the continued use of such forces in hostilities or
in such situations.
(b) Under article I, section 8, of the Constitution, it is specifically
provided that the Congress shall have the power to make all laws necessary
and
proper for carrying into execution, not only its own powers but also all
other
powers vested by the Constitution in the Government of the United States, or
in any department or officer thereof.
(c) 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.

CONSULTATION

SEC. 3. The President in every possible instance shall consult with Congress
before introducing United States Armed Forces into hostilities or into
situation 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

Sec. 4. (a) 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;
the president shall submit within 48 hours to the Speaker of the House of
Representatives and to the President pro tempore of the Senate a report, in
writing, setting forth--
(A) the circumstances necessitating the introduction of United States
Armed Forces;
(B) the constitutional and legislative authority under which such
introduction took place; and
(C) the estimated scope and duration of the hostilities or involvement.
(b) The President shall provide such other information as the Congress may
request in the fulfillment of its constitutional responsibilities with
respect
to committing the Nation to war and to the use of United States Armed Forces
abroad
(c) Whenever United States Armed Forces are introduced into hostilities or
into any situation described in subsection (a) of this section, the President
shall, so long as such armed forces continue to be engaged in such
hostilities
or situation, report to the Congress periodically on the status of such
hostilities or situation as well as on the scope and duration of such
hostilities or situation, but in no event shall he report to the Congress
less often than once every six months.

CONGRESSIONAL ACTION

SEC. 5. (a) Each report submitted pursuant to section 4(a)(1) shall be
transmitted to the Speaker of the House of Representatives and to the
President pro tempore of the Senate on the same calendar day. 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
for
appropriate action. If, when the report is transmitted, the Congress has
adjourned sine die or 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 pursuant to this section.
(b) Within sixty calendar days after a report is submitted or is required
to be submitted pursuant to section 4(a)(1), whichever is earlier, the
President shall terminate any use of Untied States Armed Forces with respect
to which such report was submitted (or required to be submitted), 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 sixty-day
period, or (3) is physically unable to meet as a result of an armed attack
upon the United States. Such sixty-day period shall be extended for not more
than an additional thirty days if the President determines and certifies to
the Congress in writing that unavoidable military necessity respecting the
safety of United States Armed Forces requires the continued use of such armed
forces in the course of bringing about a prompt removal of such forces.
(c) Notwithstanding subsection (b), at any time that United States Armed
Forces are engaged in hostilities outside the territory of the United States,
its possessions and territories without a declaration of war or specific
statutory authorization, such forces shall be removed by the President if the
Congress so directs by concurrent resolution.

CONGRESSIONAL PRIORITY PROCEDURES FOR JOINT RESOLUTION OR BILL

SEC. 6. (a) Any joint resolution or bill introduced pursuant to section
5(b) at least thirty calendar days before the expiration of the sixty-day
period specified in such section shall be referred to the Committee on
Foreign
Affairs of the House of Representatives or the Committee on Foreign Relations
of the Senate, as the case may be, and such committee shall report one such
joint resolution or bill, together with its recommendations, not later than
twenty-four calendar days before the expiration of the sixty-day period
specified in such section, unless such House shall otherwise determine by the
yeas and nays.
(b) Any joint resolution or bill so reported shall become the pending
business of the House in question (in the case of the Senate the time for
debate shall be equally divided between the proponents and the opponents),
and
shall be voted on within three calendar days thereafter, unless such House
shall otherwise determine by yeas and nays.
(c) Such a joint resolution or bill passed by one House shall be referred
to the committee of the other House named in subsection (a) and shall be
reported out not later than fourteen calendar days before the expiration of
the sixty-day period specified in section 5(b). The joint resolution or bill
so reported shall become the pending business of the House in question and
shall be voted on within three calendar days after it has been reported,
unless such House shall otherwise determine by yeas and nays.
(d) In the case of any disagreement between the two Houses of Congress
with
respect to a joint resolution or bill passed by both Houses, conferees shall
be promptly appointed and the committee of conference shall make and file
a report with respect to such resolution or bill not later than four calendar
days before the expiration of the sixty-day period specified in section
5(b).
In the event the conferees are unable to agree within 48 hours, they shall
report back to their respective Houses in disagreement. Notwithstanding any
rule in either House concerning the printing of conference reports in the
Record or concerning any delay in the consideration of such reports, such
report shall be acted on by both Houses not later than the expiration of such
sixty-day period.

CONGRESSIONAL PRIORITY PROCEDURES FOR CONCURRENT RESOLUTION

SEC. 7. (a) Any concurrent resolution introduced pursuant to section 5(b)
at least thirty calendar days before the expiration of the sixty-day period
specified in such section shall be referred to the Committee on Foreign
Affairs of the House of Representatives or the Committee on Foreign Relations
of the Senate, as the case may be, and one such concurrent resolution shall
be
reported out by such committee together with its recommendations within
fifteen calendar days, unless such House shall otherwise determine by the
yeas
and nays.
(b) Any concurrent resolution so reported shall become the pending
business
of the House in question (in the case of the Senate the time for debate shall
be equally divided between the proponents and the opponents), and shall be
voted on within three calendar days thereafter, unless such House shall
otherwise determine by yeas and nays.
(c) Such a concurrent resolution passed by one House shall be referred to
the committee of the other House named in subsection (a) and shall be
reported
out by such committee together with its recommendations within fifteen
calendar days and shall thereupon become the pending business of such House
and shall be voted on within three calendar days after it has been reported,
unless such House shall otherwise determine by yeas and nays.
(d) In the case of any disagreement between the two Houses of Congress
with
respect to a concurrent resolution passed by both Houses, conferees shall be
promptly appointed and the committee of conference shall make and file a
report with respect to such concurrent resolution within six calendar days
after the legislation is referred to the committee of conference.
Notwithstanding any rule in either House concerning the printing of
conference
reports in the Record or concerning any delay in the consideration of such
reports, such report shall be acted on by both Houses not later than six
calendar days after the conference report is filed. In the event the
conferees are unable to agree within 48 hours, they shall report back to
their
respective Houses in disagreement.

INTERPRETATION OF JOINT RESOLUTION

SEC. 8. (a) Authority to introduce United States Armed Forces into
hostilities or into situations wherein involvement in hostilities is clearly
indicated by the circumstances shall not be inferred--
(1) from any provision of law (whether or not in effect before the date
of the enactment of this joint resolution), including any provision contained
in any appropriation Act, unless such provision specifically authorizes the
introduction of United States Armed Forces into hostilities or into such
situations and stating that it is intended to constitute specific statutory
authorization within the meaning of this joint resolution; or
(2) from any treaty heretofore or hereafter ratified unless such treaty
is implemented by legislation specifically authorizing the introduction of
United States Armed Forces into hostilities or into such situations and
stating that it is intended to constitute specific statutory authorization
within the meaning of this joint resolution.
(b) Nothing in this joint resolution shall be construed to require any
further specific statutory authorization to permit members of United States
Armed Forces to participate jointly with members of the armed forces of one
or
more foreign countries in the headquarters operations of high-level military
commands which were established prior to the date of enactment of this joint
resolution and pursuant to the United Nations Charter or any treaty ratified
by the United States prior to such date.
(c) For purposes of this joint resolution, the term "introduction of
United
States Armed Forces" includes the assignment of member of such armed forces
to
command, coordinate, participate in the movement of, or accompany the regular
or irregular military forces of any foreign country or government when such
military forces are engaged, or there exists an imminent threat that such
forces will become engaged, in hostilities.
(d) Nothing in this joint resolution--
(1) is intended to alter the constitutional authority of the Congress
or
of the President, or the provision of existing treaties; or
(2) shall be construed as granting any authority to the President with
respect to the introduction of United States Armed Forces into hostilities or
into situations wherein involvement in hostilities is clearly indicated by
the
circumstances which authority he would not have had in the absence of this
joint resolution.

SEPARABILITY CLAUSE

SEC. 9. If any provision of this joint resolution or the application
thereof to any person or circumstance is held invalid, the remainder of the
joint resolution and the application of such provision to any other person or
circumstance shall not be affected thereby.

EFFECTIVE DATE

SEC. 10. This joint resolution shall take effect on the date of its
enactment.

CARL ALBERT
Speaker of the House of Representatives.

JAMES O. EASTLAND
President of the Senate pro tempore.





IN THE HOUSE OF REPRESENTATIVES, U.S.,
November 7, 1973.


The House of Representatives having proceeded to reconsider the
resolution (H. J. Res 542) entitled "Joint resolution concerning the war
powers of Congress and the President", returned by the President of the
United
States with his objections, to the House of Representatives, in which it
originated, it was
Resolved, That the said resolution pass, two-thirds of the House of
Representatives agreeing to pass the same.
Attest:
W. PAT JENNINGS
Clerk.

I certify that this Joint Resolution originated in the House of
Representatives.
W. PAT JENNINGS
Clerk.





IN THE SENATE OF THE UNITED STATES
November 7, 1973

The Senate having proceeded to reconsider the joint resolution (H. J.
Res. 542) entitled "Joint resolution concerning the war powers of Congress
and
the President", returned by the President of the United States with his
objections to the House of Representatives, in which it originate, it was
Resolved, That the said joint resolution pass, two-thirds of the
Senators
present having voted in the affirmative.
Attest:
FRANCIS R. VALEO
Secretary.

Legal expert Marty Lederman:

Just as the McCain Amendment prohibits the President from using cruel, inhuman and degrading treatment against Al Qaeda prisoners; just as numerous other statutes and treaties place limitations on how the President can conduct war or other conflicts (e.g., the torture statute; the War Crimes Act; the War Powers Resolution; FISA; the Habeas Act; the UCMJ (upheld in part in Hamdan, over the President's objections that it would impinge on his ability to defeat the enemy); the Boland Amendments; a bunch of statutes at the tail-end of the Vietnam War prohibiting the use of funds for the use of armed forces in particular nations, such as Cambodia); just as numerous other statutes have authorized hostilities only for certain purposes and on certain conditions, thus imposing implicit limitations (e.g., the statute upheld in Little v. Barreme; the 1993 Defense authorization provision that funds could be obligated in Somalia beyond March of 1994 only "to protect American diplomatic facilities and American citizens, and noncombat personnel to advise the United Nations commander in Somalia"; etc.); -- and odds are that Senator Biden voted for the vast majority of these statutory limitations on the Commander-in-Chief . . .

[Peace Patriot]

1. To simplify, the purpose was to PREVENT the President from making war

without the consent and oversight of Congress, as required by the Constitution.

"SEC. 2. (a): It is the purpose of this joint resolution to ...insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities...."

"SEC. 2. (b)": (to simplify) Congress is the SOLE law-making authority in the country.

"SEC. 2. (c)": (to simplify) The President is RESTRICTED in making war by Congress' SOLE right to declare war, or to specifically authorize it by statue, and in case of national emergency.

---------

Legal experts, please correct me if I'm wrong. But that is my reading of the War Powers Resolution. It was intended mainly to restrict the President, to re-state the strong limits put on him or her by the Constitution--the background being the Vietnam War. However, by ADDING that Congress may 'specifically authorize" hostilities "by statute," Congress may have been giving itself a little loophole by way of absolving itself for having fallen for the "Gulf of Tonkin" resolution, and that loophole is the one that Bush slipped the Iraq War through. Yet another statutory "authorization," and no "declaration of war." IF there HAD BEEN a real declaration of war, then Congress would have had time to discover that the WMDs were a bunch of shit and that Iraq was no threat.

One thing that jumps out at me--the Iraq War Resolution needs to be RESCINDED.

We need a new Resolution that says that the WMDs were a bunch of shit, the war was unjustified, Congress was lied to, and we hereby rescind "authorization" to use force in Iraq, except to get our troops out of there, at once.

The other thing that occurs to me is that the War Powers Resolution itself needs to be amended, and this "statutory" thing taken out. It is a BLACK HOLE, through which any President blest with sufficient "pod people" in Congress can shove a full scale war. What about, say, Bosnia? Or other UN peacekeeping? (--whatever you may think of Bosnia or Afghanistan--UN peacekeeping is, theoretically, necessary.) Perhaps the War Powers Act should include a provision for UN peacekeeping, in place of this loophole by which the Bush Junta slaughtered one hundred thousand innocent people in Iraq and destroyed their country. UN peacekeeping occurs via treaty, I believe (--our signing onto the UN Charter, etc.) I'm not sure, exactly, how this "statutory" loophole interacts with treaty obligations. Did Congress invoke this "specific authorization" provision to okay Bosnia, or did Clinton just do it, under existing treaty obligations? In any case, we might want our War Powers Act to specifically restrict use of the US military for UN peacekeeping, by, say, requiring that it not occur without a majority vote of UN General Assembly, and that Congress must specifically authorize that action and only that action (if it doesn't already).

Thanks for the post! I think we're going to be hearing more about the War Powers Act in the immediate future.

[kentuck]

2. Seems to me this is appropriate time for Amendment to War Powers Act?

Congress needs to take some of the war making power back from the Executive Branch. It is obvious. This should be done ASAP. The wording is open for suggestion:

[Skidmore]

3. Voting them out aside, is there any other remedy the people

can take against Congress should they continue to give away their constitutionally given powers--the powers that belong to the people--to the executive?

[ProSense]

4. "Is Lying About The Reason For War An Impeachable Offense?"

From: Missing Weapons Of Mass Destruction: Is Lying About The Reason For War An Impeachable Offense? (By JOHN W. DEAN):

To put it bluntly, if Bush has taken Congress and the nation into war based on bogus information, he is cooked. Manipulation or deliberate misuse of national security intelligence data, if proven, could be "a high crime" under the Constitution's impeachment clause. It would also be a violation of federal criminal law, including the broad federal anti-conspiracy statute, which renders it a felony "to defraud the United States, or any agency thereof in any manner or for any purpose."

[Nothing Without Hope]

5. The highlighted section seems pretty clear to me:

"(c) Notwithstanding subsection (b), at any time that United States Armed
Forces are engaged in hostilities outside the territory of the United States,
its possessions and territories without a declaration of war or specific
statutory authorization, such forces shall be removed by the President if the
Congress so directs by concurrent resolution."

So much for the sniveling Congressional cowards, co-conspirators and enablers who claim that Bush can do anything he wants to according to the Constitution.

[Sanity Claws]

6. Section 3 requires Bush to consult with Congress

once troops have been committed. He has not done this, another violation.

[MyNameGoesHere]

9. i think a pres

has to confer from time to time but no longer than 6 months. i believe i read that. I hate the war powers act it should never have been introduced and it has been abused by many presidents.

[Solly Mack]

7. Recommended

Thank you for posting!!!!

[ProSense]

8. Kennedy - Escalation: It's Not Up To Him

Video and PDF of Kennedy's legislation at JohnKerry.com:

Kennedy - Escalation: It's Not Up To Him