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War Resolution

The War Powers Resolution (WPR) of 1973 is a joint resolution passed by Congress to make the transportation of the U.S. Armed Forces by the U.S. President subject to the authorization of Congress.  WPR ensures that the collective judgment of both Congress and the U.S. President will apply to the introduction of U.S. Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations[i].

Accordingly, the purpose of WPR is to give Congress both the knowledge and the mechanism needed to reclaim its constitutional power to declare war.

The constitutional powers of the U.S. President to introduce U.S. Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, can be exercised only in the following circumstances[ii]:

  • when there is a declaration of war;
  • when there is  a specific statutory authorization; or
  • when there is a national emergency created by attack upon the U.S., its territories or possessions, or its armed forces.

 

Pursuant to WPR the U.S. President in every possible instance must consult with Congress before introducing U.S. Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.  In addition, after every such introduction, the U.S. President must consult regularly with Congress until U.S. Armed Forces are no longer engaged in hostilities or have been removed from such situations[iii].

In any case in which U.S. Armed Forces are introduced into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, the U.S. President must submit a report within 48 hours to the Speaker of the House of Representatives and to the U.S. President pro tempore of the senate.  Such report must state[iv]:

  • the circumstances necessitating the introduction of U.S. 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 Crockett v. Reagan, 558 F. Supp. 893 (D.D.C. 1982), the court observed that “when United States forces are introduced into hostilities or a situation of imminent hostilities, the War Powers Resolution’s (WPR) reporting requirement automatically comes into play, and the President violates the law if he does not make the mandated report.  Further, whether or not he makes the report, the 60-day period begins to run from the time the report should have been submitted.  The WPR requires that within 60 calendar days after a report is submitted or is required to be submitted, whichever is earlier.”

Each report so submitted will 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 transferred, 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 U.S. President pro tempore of the senate, shall jointly request the U.S. President to convene Congress in order that it may consider the report and take appropriate action.

Further, any use of U.S. Armed Forces with respect to which a report was submitted or required to be submitted shall be terminated by the U.S. President, unless Congress has declared war, or has enacted a specific authorization for such use of U.S. Armed Forces within 60 days, or is physically unable to meet as a result of an armed attack[v].  Such sixty-day period can be extended for not more than an additional thirty days if the U.S. President determines and certifies to Congress in writing that unavoidable military necessity respecting the safety of U.S. Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces[vi].

Generally, WPR also permits a private cause of action just like any other statute.  The standards for determining the existence of a private cause of action for violation of a WPR requires an analysis of the following factors[vii]:

  • whether the plaintiff is one of the class for whose special benefit the statute was enacted;
  • whether there is an explicit or implicit indication of legislative intent to create or deny a private remedy; and
  • whether such a remedy would be consistent with the underlying purposes of the legislative scheme to create a private remedy for the plaintiff.

 

[i] 50 USCS § 1541.

[ii] 50 USCS § 1541(c).

[iii] 50 USCS § 1542.

[iv] 50 USCS § 1543.

[v] Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000).

[vi] 50 USCS § 1544.

[vii] Ange v. Bush, 752 F. Supp. 509 (D.D.C. 1990).


Inside War Resolution