An Analysis of the War Powers Act of 1973

One of the hallmarks of a presidential and democratic society is the division of powers among the three main branches of government. This is called the principle of the separation of powers or the principle of checks and balances. This principle seeks to prevent the over concentration of authority in one person or group of persons that might lead to an error or abuse to the prejudice of the whole state.

Austin Ranney (1995) once said that any concentration of powers in a single branch is tyrannical and only true separation of powers will protect the liberties of the people against the aggressions of government. (Austin Ranney, p. 240) The principle of separation of powers has always been criticized as impeding the enactment of bills and promoting efficiency in the running of the affairs of the government. It is because of this reason why some democratic countries have amended their constitutions and shifted to the parliamentary system.

War Powers Act of 1973 A concrete example of the Principle of Separation of Power is the war powers which the US Constitution has entrusted to the Executive and the Legislative Branch. Under the United States Constitution, it may appear that the delineation of war power between the Legislative and Executive Branch is clear. The purpose is to make sure that no one branch of government will have the absolute prerogative in making all decisions in matters pertaining to war.

Article 1 Section 8 of the United States Constitution clearly expresses that the Congress shall have the following powers: a) To declare War, grant letters of marque and reprisal, and make rules concerning captures on land and water; b) To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; c) to provide and maintain a navy; d) to make rules for the government and regulation of the land and naval Forces; e) to provide for the calling of the militia to execute the Laws of the Union, suppress insurrections and repel invasions; f) to provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the Militia according to the discipline prescribed by Congress.

On the other hand, under Article II Sec. 2 of the United States Constitution the President shall have the following powers: a) The President shall be Commander in Chief of the army and navy of the United States, and of the militia of the several States; b) The president shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur. Based on these two provisions in the United States Constitution, the war powers appear to be clearly divided between the two main branches of government.

Under these provisions, the President has the power to lead the armed forces in times of war and to make swift decisions on the field of battle. (“War and Treat Powers”) On the other hand, the Congress has the power to declare war and to appropriate huge amounts of dollars in support of the war effort. The clear division of powers between the two main branches, however, appear to be more apparent than real. In between these two powers lie a vacuum which the framers of the constitution failed to consider. For any other decisions that the US Constitution failed to anticipate, it appears that the President has complete freedom and absolute discretion to act.

This is something which is abhorred by our constitution. Consider the Korean War in which the United States army was intensely involved. The Korean War began as a civil war which was fought from 1950–1953 on the Korean Peninsula. It began when North Korean attacked South Korea on June 25, 1950. (“Korean War”) Eventually China and the United States became involved in this conflict. Although it was called the Korean War, the United States preferred to call it the police action rather than a war in order to avoid the necessity of formal declaration of war by the Congress of the United States. The same thing happened during the Vietnam War or the Vietnam Conflict.

This war lasted for 16 which began from 1959 to 1975. (“Vietnam War”) This involved the United States, its allies and the South Vietnam against Soviet Union, its allies and the People’s Republic of China and the North Vietnam. In this war, the U. S. deployed large numbers of troops to South Vietnam between 1954 and 1973. Some U. S. allies like the Philippines, Australa and New Zealand also sent their troops to aid the United States and South Vietnam. Similar to the Korean War, the United States was also intensely involved in this war without a formal declaration of war by Congress. These two major events in our history have triggered the enactment of the War Powers Act of 1973.

It is worth stressing that based on our history Congress has formally declared war in only five conflicts – the War of 1812, the Mexican War, the Spanish-American War, World War I, and World War II – while U. S. presidents have committed armed forces to more than one hundred combat operations around the world. (Charles F. Williams, 2003) The purpose of this law is to provide for a limitation on the powers of the President to deploy United States troops into combat areas without the approval of the legislative branch. Congress aims to prevent the possibility that another Korean and Vietnam Wars may be repeated where the United States deployed its soldiers for battle without the formal declaration of war coming from the Congress.

Section 2(a) of the said law is clear on this matter, it states that: “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 judgment 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. Under the said law, the president is required to consult Congress in every possible instance 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.

The War Powers Act of 1973 also requires the President to 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 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 in case United States Armed forces are actually introduced for combat. The said law also requires the President to terminate within sixty calendar days after a report is submitted any use of United States Armed Forces unless the Congress has declared war or has enacted a specific authorization for such use of United States Armed Forces or has extended by law such sixty-day period or is physically unable to meet as a result of an armed attack upon the United States.

The 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. The Congress by concurrent resolution is authorized at all times to order the withdrawal of US troops. Arguments against War Powers Act of 1973 One of the arguments raised against the enactment of the War Powers Act of 1973 is that it is an act of encroachment on the part of the Legislature of a territory which the US Constitution has delegated to the Executive Branch. It must be stressed that the President took his oath before he assumed his office that he will faithfully execute the Office of President of the United States, and he will to the best of his ability preserve and protect and defend the Constitution of the United States.

The present statute significantly limits the powers of the president to act in times of war which have a serious effect on the performance of his obligation. Arguments In Favor of War Powers Act of 1973 On the other hand, some are in favor of the War Powers Act of 1973. They argue that the consultation and reporting requirements and the power of Congress to terminate the deployment of armed forces do not operate to limit the powers of the president. It merely serves to ensure that the constitutional mandate is observed. As envisioned by the United States Constitution, there shall always be two keys to start the engine of war running – the key given to the Congress and the key given to the President.

Thus, the War Powers Act of 1973 does make Congress superior to the President, rather, it only highlights the supremacy of the United States Constitution. Conclusion I believe that the War Powers Act of 1973 is constitutional. Our history has shown that we cannot entrust to a single man the power to deploy United States troops to combat. In the past decade, all the past presidents, including our present president, has deployed hundreds of thousands of US soldiers to battle. This not only led to the death of countless soldiers but it has depleted our resources. The United States Constitution is still the highest law of the land and it is clearly manifested in the enactment of the War Powers Act of 1973.