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The U.S. Constitution gives Congress and the president different responsibilities in waging wars, but there have long been disputes about where one's war powers begin and the other's ends. The Obama administration's dispute with Congress over its decision to participate in the military intervention in Libya in March 2011 revives a showdown over war powers last seen in spring 2007 when a Democratic-controlled Congress sought to expedite troop pullouts from Iraq in defiance of a Republican president. In the case of the Libyan mission, a Democratic president faces concerns from lawmakers of both parties over his decision to act without congressional approval.
The administration delivered a report on June 15 stating that the military operations in Libya are too limited to require Congress to authorize them under the War Powers Resolution. House Speaker John Boehner said the White House letter "just doesn't pass the straight-face test in my view that we're not in the midst of hostilities." Aside from constitutional questions, many scholars point to the growing assertion of presidential war powers since the end of World War II. CFR Senior Vice President James Lindsay writes that "the war power gravitates to the White House, in practice if not in law." He notes the Supreme Court's reluctance in recent years to insert itself in war powers cases and the burden on Congress to change presidential action.
What are the president’s war powers?
The U.S. Constitution empowers the president to wage wars as commander in chief while Congress has the power to declare wars and fund them. But chief executives from both major parties often differ with Congress over their ability to deploy military power. A number of experts believe presidents have demonstrated greater power to wage wars since the end of World War II. "The president has been commander in chief since 1789, but this notion that they can go to war whenever they want, and [ignore] Congress, that's a post-World War II attitude," says Louis Fisher, scholar in residence at the Constitution Project (and former specialist in constitutional law at the Library of Congress).
Legal experts Noah Feldman and Samuel Issacharoff wrote in March 2007 in Slate that the Constitution intended the president to have the power to wage war effectively. "In the modern era, no country--not even a parliamentary democracy--has been so foolhardy as to place a war under the guidance of a legislative body, rather than a single, unified command."
Adds Robert F. Turner, associate director of the University of Virginia's Center for National Security Law: "Bringing up troops from the rear is right at the core of the command function [of] presidential power."
But other experts point to established limits of presidential power during wartime, citing the U.S. Supreme Court's 1952 ruling that struck down President Harry S. Truman's order to maintain operations of the country's steel mills for national security reasons, which was found to be against the will of Congress. Some point to the Supreme Court's 2006 Hamdan vs. Rumsfeld ruling--which found special military commissions established by the Bush administration to be illegal--to stress the shared wartime powers of the president and Congress. Susan Low Bloch, a constitutional law expert at the Georgetown University Law Center, says the framers of the Constitution deliberately divided the war powers between the two branches to induce them to work together on such a vital issue. "I don't know if they expected conflict, but they wanted coordination and cooperation and shared responsibility," Bloch says.
Can Congress set timelines for a troop withdrawal?
Scholars disagree. A group of constitutional experts wrote a letter to Congress (PDF) in January 2007 that asserts Congress has "substantial power to define the scope and nature of a military conflict that it has authorized, even when these restrictions may limit the operations of troops on the ground." Such actions, they said, include setting troop limits. But former Bush administration Justice Department official John Yoo has written that the main power of Congress was in controlling war funding, not deciding troop deployments or plans to surge forces. "Congress is too fractured, slow, and inflexible to micromanage military decisions (LAT) that depend on speed, secrecy, and force," Yoo wrote.
A late twentieth-century example was the action by the Democrat-controlled Congress in the fall of 1983 setting up an eighteen-month time limit for U.S. troops already deployed as a peacekeeping force in Lebanon by President Ronald Reagan's Republican administration. Within two weeks of the president signing that timeline measure into law, a suicide bomb destroyed the U.S. Marine barracks in Beirut, killing 241 U.S. service personnel. The Reagan administration withdrew its participation in the multinational force in Lebanon by the end of March 1984.
Given the important U.S. interests served by U.S. military operations in Libya and the limited nature, scope, and duration of the anticipated actions, the president had constitutional authority--as commander in chief and chief executive, and pursuant to his foreign affairs powers--to direct such limited military operations abroad.
What is the War Powers Resolution?
The 1973 War Powers Resolution followed a period of growing congressional concern over the presidential use of military force. Among other things, the legislation, which withstood a veto by President Nixon, required that a president terminate combat in a foreign territory within sixty to ninety days unless there was congressional authorization to continue. It also sought to provide presidents with the leeway to respond to attacks or other emergencies. The measure was intended to provide more coordination between the executive and legislative branches on the use of force. It does not fully address the issue of winding down a conflict.
What impact has the War Powers Resolution had on waging wars?
Experts say it has had mixed results. Alton Frye, a CFR presidential senior fellow at the time, told the Senate Judiciary Committee in 2002 that the response to the act was disappointing. "The resistance of every president to the law," he said, "beginning with President Nixon's unsuccessful veto, and the Supreme Court's refusal to provide a definitive ruling on the law's constitutionality, have left a worrisome cloud over legislative-executive relations in this crucial field." The Congressional Research Service says that from 1975 through 2009, presidents submitted 127 reports related to deployment of U.S. forces (PDF), as required by the resolution. But only one--the 1975 Mayaguez incident--cited action triggering the time limit. It found the reports from presidents, who usually said their actions were "consistent with the War Powers Resolution," ranged from embassy operations to full combat like the 2003 war with Iraq, which Congress authorized. Fisher, of the Constitution Project, says there has been some acknowledgment from presidents of the law's power. "I think in a lot of actions--in Granada [in 1983], in Panama in 1989--there seemed to be efforts to get things wrapped up by the sixty-day limit," he says.
What are the president’s options in the event of Congress cutting off funding?
In the case of the U.S. intervention in Libya, if the conflict persists, Congress must authorize funding. But despite this leverage, a number of experts note the factors favoring the executive branch. CFR's Matthew Waxman says Congress could legislatively force Obama to stop the operations through cessation of funding or passing a law to prohibit the military intervention, though "this is very hard to pull off politically." CFR's Lindsay notes the tough calculus involved in Congress challenging a president's ability to act militarily. Lindsay writes in his blog, The Water's Edge: "Congress can stop the president only by passing a law that commands him to do so. But that law is subject to a presidential veto. As long as a president can get thirty-four senators to back him, and almost every president can, he carries the day even if the other 501 members of Congress are opposed." Presidents can also use their bully pulpit to maintain support for a military mission.
