War Powers Act (1973)

Law addressing the balance of power between the president and Congress in declaring war. The War Powers Act clarifies the mechanism by which the president may use U.S. armed forces. It spells out the situations under which he can deploy the forces with and without a congressional declaration of war. The resolution that created the War Powers Act was passed over the veto of President Richard Nixon on November 7, 1973.

Supporters viewed the War Powers Act as a reaction to Presidents Nixon and Lyndon B. Johnson, who acted without congressional approval or a declaration of war during the Vietnam War. During the Korean and Vietnam wars, the United States found itself involved for many years in undeclared wars. As a result, many members of Congress became concerned with the erosion of congressional authority. Opponents saw the law as an unconstitutional effort to restrict the commander in chief.

The War Powers Act indicates the necessary and proper clause of the Constitution as the basis for [Page 806]legislation on the war powers. It states that the president's powers as commander in chief to introduce U.S. forces into hostilities or imminent hostilities are exercised only following (1) a declaration of war; (2) specific statutory authorization; or (3) a national emergency created by an attack on the United States or its forces.

The law requires the president to consult with Congress before using armed forces, unless there has been a declaration of war or other specific congressional authorization. Consultation in this case means that a decision is pending and the president is asking members of Congress for advice and opinions. It also requires the president to report to Congress any introduction of forces into hostilities or imminent hostilities, as well as any introduction or substantive enlargement of combat forces into foreign countries. After a report is submitted, Congress must authorize the use of forces within 60 to 90 days or the forces must be withdrawn.

In the absence of a declaration of war or congressional authorization, the president has to report within 48 hours the introduction of U.S. armed forces into hostilities. Hostilities refer to a situation in which fighting actually has begun or where there is a clear and present danger of armed conflict.

The War Powers Act seeks to clarify interpretations of the president's authority. For example, Section 8 of the Act states that authority to introduce armed forces is not to be assumed from any provision of law or treaty unless it is specifically mentioned. This section aimed to avoid the use of a broad resolution, such as the Tonkin Gulf resolution, to justify hostilities abroad. That resolution stated that the United States was prepared to take “all necessary steps, including use of armed force,” to assist certain nations, and it was cited by presidents and many members of the Congress as congressional authorization for the Vietnam War.

The War Powers Act also makes clear that it does not prevent U.S. forces from participating in joint military exercises with allied or friendly organizations or countries, such as the North Atlantic Treaty Organization (NATO) and the United Nations. Another important specification appears in Section 8(c) of the Act, which defines the introduction of armed forces to include the assignment of armed forces to accompany regular or irregular military forces of other countries when engaged, or potentially engaged, in hostilities. The purpose of this provision was to prevent secret or unauthorized military support to foreign countries. The deployment of U.S. ground troops in Vietnam began with the assignment of advisers to South Vietnamese forces.

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