The War Powers Resolution

Joshua O’Brien

[The Congress shall have Power…] To Declare War, grant Letters of Marque and Reprisal, and Make Rules Concerning Captures on Land and Water

         U.S. Constitution, Article I, Section 8, Clause 11

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

         U.S. Constitution, Article II, Section 2, Clause 1

On February 25, 2021, the United States carried out airstrikes in eastern Syria, on targets associated with Iranian-backed militias. The strikes were carried out in response to the rocketing of American coalition personnel in Erbil, Iraq ten days prior. The strategic wisdom of the strikes is debatable, though they seem to be fairly proportional as a response action. But the bigger debate in Washington is not about the strike itself, but the Constitutional and legal mechanisms behind it.

The Constitutional excerpts at the beginning of this post are the origin of this debate. The President is the commander-in-chief, but only Congress can declare war. So…what about military actions short of war? Following heightened involvement in Vietnam, Congress created the War Powers Resolution to answer this question. Passed in 1973, over President Nixon’s veto, the War Powers Resolution requires that the President notify Congress of any military action within 48 hours and forbids commitments for more than 60 days. For engagements exceeding these parameters, Congress is to provide either a declaration of war (which it has not done since the Second World War), or an Authorization for Use of Military Force.

Last week, Congressional representatives complained that they had not been sufficiently notified of the Syrian strike, as required by the Resolution. Their complaints put the Resolution into the spotlight once again. The War Powers Resolution has been controversial since its inception. Presidents will formally abide by its terms, but often assert that they do not have the constitutional requirement to do so. Congress asserts that the Resolution is valid. The Supreme Court has never provided an opinion, as no cases involving the Resolution have been adjudicated before it. It is likely to remain untested indefinitely, in part because neither Presidents nor Congresses are eager to risk curtailments to their war authority.

So, the War Powers Resolution continues, contentiously. Though it complicates the constitutional command authority, it does force the President and Congress to confer on protracted matters of foreign policy, or at the least engage the dissenting opinions of Congress before the use of force. It might be inelegant, and perhaps harmful to credibility, but it does force the democratic system to engage in debates on what could otherwise be one of the more autocratic tools of foreign policy. Or…at the very least, it forces debate on the constitution. To be determined if anyone in Congress will meaningfully dissent to the Syria strike.

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