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Prior to our undeclared war with Iran, I had heard of the "War Powers Act" but I had never paid any attention to it, likely because every President from Nixon to Trump, both Republican and Democrat has paid no attention to it either. However, the start of the war got Congressional Democrats, most of whom seem to suffer from Trump Derangement Syndrome, speaking about it in terms that made it seem as if the act was as sacrosanct as the Magna Carta or the Bill of Rights so I decided that I should learn more about it.
To begin:
Article. I. Section. 8 of the Constitution of the United States says that Congress shall have the power to declare War, to raise and support Armies and to provide and maintain a Navy.
Article. II. Section. 2 of the Constitution of the United States says 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 other words, the president carries out a war.
The above statements in the Constitution tell us that Congress has the power to declare war and to raise and support armies and maintain a navy. However, the President is in the military chain of command as Commander in Chief of the armed forces.
The United States Congress has formally declared war 11 times in five separate conflicts, with the last occurring in 1942 during World War II. The other conflicts are the War of 1812 declared against Great Britain. The Mexican American War in 1846 was declared against Mexico. The Spanish-American War in 1898 was declared against Spain. World War I 1917-1918 declared against Germany and Austria-Hungary, and World War II 1941-1942 declared against Japan, Germany, Italy, Bulgaria, Hungary, and Romania.
Since the end of World War II formal declarations have fallen out of use with modern American conflicts conducted through specific Authorization for Use of Military Force (AUMF) or unilateral presidential deployments. Examples include the Korean War (1950-1953) where the U.S. as part of the UN force fought the North Korean invasion, acting under United Nations resolutions without a congressional declaration.
The Vietnam War (1955-1975) was authorized by the 1964 Gulf of Tonkin Resolution, which authorized the use of military force but fell short of a formal declaration, the Persian Gulf War (1990-1991) was authorized by Congress by the 1991 Authorization for Use of Military Force to expel Iraqi forces from Kuwait. The War in Afghanistan (2001-2021) was Authorized in 2001 following the September 11 attacks, and the Iraq War (2003-2011) Authorized in 2002 with the goal to disarm Iraq of weapons of mass destruction and end Saddam Hussein’s alleged support for terrorism.
Presidents have also deployed forces in actions such as the Lebanon crisis (1958), the invasion of Grenada (1983), and operations in Somalia (1993) utilizing their powers as Commander-in-Chief.
The War Powers Act was passed in 1973 over President Nixon's veto to curb the Presidents' authority to wage undeclared war and to reassert the Congress’s power to declare war. The reason given for its passage was Nixon's bombing and incursion into Cambodia from 1969 to 1972. Of course, a Democratic led Congress previously had done nothing to limit Democratic President Johnson's escalation from 1965 to 1968 when it is possible that many American lives could have been saved.
The War Powers Act established strict guidelines for presidential military action that required the president to notify Congress within 48 hours of committing armed forces to military action. It further limited military actions to 60 days, with an additional 30 days permitted for a safe withdrawal unless Congress authorized the continued use of force or declared war.
In reality the War Powers Act has never successfully been used to force a president to end a military action and is considered ineffective at preventing any conflicts largely because no judicial action against a president has ever succeeded because the courts generally decline to intervene in disputes between the executive and legislative branches. Since its enactment every U.S. president has sidestepped, reinterpreted or actually ignored its provisions requiring congressional authorization of military action.
Opponents of the act in both parties and multiple presidential administrations have argued that the law unconstitutionally infringes on the Executive branch's power to direct the military and protect national security.
Historians of the Constitution have noted that the framers of the Constitution deliberately gave Congress the power to declare war but assigned the President the command of the armed forces that would carry out that war. Further historians note that records of the Constitutional Convention indicate that it chose the phrase "declare war" instead of "make war" for the duty of Congress because they seemed to understand that at times the President would need to respond to a sudden attack or rapidly changing international events without having to wait for Congress to meet and vote a declaration of war.
The 1973 War Powers Act has failed in its stated purpose to reassert the constitutional balance of power and limit the U.S. president's ability to initiate or escalate military actions abroad without the express consent of Congress. It does not even touch on the issues of cyber war and is ineffective in that modern form of warfare because it is a predigital age legal tool designed for physical, kinetic conflict, making it incompatible with the speed, anonymity, and digital nature of modern cyber war. Now after more than 50 years after its passage the act has become nothing more than a partisan cudgel to harass a sitting president.
Thomas Kirkpatrick Sr. is a Silver Creek resident. Send comments to editorial@observertoday.com