War Powers Resolution Research Articles

Presidential attentiveness to international crises

AbstractWhy, and under what conditions, do international crises make the president's national security agenda? I argue that international crises are opportunities for presidents to seek domestic political gains, but that presidents are likely to weigh anticipated political benefits against anticipated risk of political opposition. I analyze presidential National Security Council (NSC) meeting agendas from 1947 to 1993 to find that the War Powers Resolution (WPR) of 1973 reduced the likelihood of presidential crisis attentiveness, that low approval ratings are associated with increased crisis attentiveness, and that post‐WPR presidents under unified government are likely to be more crisis attentive. This article provides fresh analysis of the WPR by connecting presidential national security behavior with American domestic politics.

At War with Congress: War Powers Disputes during the Trump Administration

ABSTRACT During his four years in office, Congress made historic challenges to President Donald Trump’s authority as Commander in Chief, twice invoking the 1973 War Powers Resolution. The first resolution, passed in 2019, expressed disapproval of the U.S.’ logistical and material support for Saudi Arabia’s campaign against the Houthi rebel movement in Yemen. The second challenge occurred in 2020 after Trump authorized a drone strike that killed Iranian Major General Qassam Soleimani. In response, Congress passed a WPR that stipulated that any future military action against the regime would require express legislative authorization. Using a case study approach, this essay examines why Congress chose to employ the WPR as a policy tool after decades of dormancy. Ultimately, I argue that a confluence of factors compelled majorities in both chambers of Congress to use the War Powers Resolution to make a powerful rebuke of the administration’s policy. Drawing on a wealth of existing literature about the factors that impede or compel Congressional activism in use-of-force debates, I find that in both cases, members of Congress faced strong moral, legal, and strategic incentives to act, with few attendant political risks. As such, while the passage of two wars powers resolutions represented an important milestone in interbranch relations, it likely does not presage a new era of Congressional assertiveness in war powers. Keywords: U.S. foreign policy; Donald Trump; Congress

Biden Administration Relies on Constitutional Authority and Unwilling or Unable Theory of Self-Defense for Airstrikes in Syria

On February 25, 2021, the United States conducted a strike targeting Iranian-backed militia group facilities in Syria. The strike, which came in response to a February 15, 2021 attack on U.S. interests in Iraq, marked the Biden administration's first known exercise of executive war powers. As domestic authority for the strike, President Joseph Biden, Jr. cited his authority under Article II of the U.S. Constitution and did not rely on the 2001 or 2002 Authorizations for the Use of Military Force (AUMFs). For international legal authority, Biden relied on individual self-defense under Article 51 of the UN Charter, stating that Syria was “unwilling or unable” to prevent further attacks on the United States by these non-state actors within its territory. The strikes garnered mixed reactions from Congress, where efforts are underway to repeal or reform extant AUMFs as well as the War Powers Resolution (WPR). The Biden administration is also undertaking a review of current U.S. military policy on the use of force, and during this process, it has prohibited drone strikes outside of conventional battlefields, absent presidential approval.

Testimony of Professor Rebecca Ingber on War Powers Reform, to the House Rules Committee

Professor Rebecca Ingber testified before the U.S. House Committee on Rules hearing on Article I: Reforming the War Powers Resolution for the 21st Century, on March 23, 2021.

The War Powers Resolution and the Concept of Hostilities

In March 2020, in response to airstrikes that killed Iranian general Qassem Soleimani, the House and Senate passed a resolution calling for President Trump to end escalating military hostilities against Iran. Although ultimately vetoed, this resolution marked only the second time in history that measures invoking the War Powers Resolution of 1973 to limit the President’s authority to use force have passed both houses, demonstrating Congress’s increasing willingness to assert its constitutional role on matters of war powers. Although questions of when the nation can go to war are deeply contested, this Article argues that the steady accretion of the President’s war powers should not remain unconstrained. The War Powers Resolution (WPR), which imposes a withdrawal mandate on unauthorized introductions of armed forces into “hostilities,” remains the best framework for checking presidential unilateralism. This Article presents a systematic investigation of the executive branch’s practice of circumventing the WPR’s requirements, identifying two ways that the executive has narrowly interpreted “hostilities” in recent years. In analyzing whether and how legal processes constrain the President, this Article proposes two ways of reconceptualizing “hostilities” to prevent future circumvention of the WPR. First, it argues that a state of “hostilities” can exist even when the United States plays a supporting role in a partner mission, and must be reframed to encompass situations where U.S. troops use or are subject to lethal force. Second, this Article proposes considering the following criteria to determine whether U.S. armed forces face ongoing hostilities: 1) whether there is risk of harm to U.S. forces from exchanges of fire, taking into consideration the likelihood of sustained violence occurring over an extended period of time, as indicated by factors like internal rules of engagement; and 2) whether there is regular use of force by or against U.S. forces, taking into consideration additional troop deployments.

Does It Even Work? A Theoretical and Practical Evaluation of the War Powers Resolution

ABSTRACTThe War Powers Resolution of 1973 represents a policy that attempts to fill a procedural gap in the Constitution, that is, a clear process by which the use of military force is authorized. Based on what is arguably a misinterpretation of the Constitution, it fails to achieve its objective: to constrain the president's discretion in employing military force unilaterally.This article addresses the WPR in four sections. First, it examines the law's theoretical underpinnings. Next, it summarizes the law's provisions, its application, and several direct and indirect approaches that have been applied in studying the use of military force and the WPR. Third, using quantitative analysis, the article seeks to answer three basic questions:1) Has the WPR had any effect on the U.S. president's decision to employ military force?2) Has the WPR had any effect on the magnitude of force employed in a conflict?3) Has the WPR had any effect on the duration of conflicts in which the president has employed military force?Findings indicate that the War Powers Resolution is not a significant factor in presidents' decisions to use military force. Once the president decides to employ force in a given scenario, it also fails to be a significant factor in affecting the magnitude of force that is used. It appears that the law may have an effect on the duration of conflicts involving the U.S. military, but weaknesses in the statistical model leave this question open to further research to confirm or deny this verdict.

Amicus Brief of the Constitution Project Submitted to D.C. Circuit Court of Appeals in Smith v. Trump

In Smith v. Obama (2016), the District Court found that Captain Smith’s action presents a political question for three reasons: first, it presented questions committed to the political branches of government; second, the courts are ill-equipped to resolve those questions; and third, there is no conflict between Congress and the President regarding the lawfulness of the war against ISIS. In this brief, amici ask the DC Circuit to reverse that ruling, arguing that the District Court erred in each of those findings. First, the Supreme Court has previously reached the merits to decide two seminal cases that are directly on point — Little v. Barreme (1804) and Youngstown Sheet & Tube Co. v. Sawyer (1952) — without even considering the possibility that either presented a political question. Second, judicial fact-finding incapacities present an evidentiary hurdle that a plaintiff can overcome by meeting the applicable burden of persuasion, not an insurmountable justiciability barrier that prevents a plaintiff from even attempting to do so. And third, the District Court could conclude that no conflict exists between Congress and the president only by holding sub silentio that the War Powers Resolution’s clear statement rule is unconstitutional — thus creating an issue of statutory validity that the Supreme Court has emphasized does not present a political question.

Military Force and Violence, but Neither War nor Hostilities

Against all hope for change, President Barack Obama has been a war president and a vigorous one at that. This Article considers the legality of his uses of force in Libya and against ISIS. When the President waged war against Libya in 2011, he acted contrary to the Constitution and its allocation of the declare war power to Congress. In simple terms, the President unconstitutionally declared war against Libya. Moreover, the aerial bombardment of Libyan forces constituted hostilities under the War Powers Resolution. Given that Resolution’s time constraint on hostilities, the President’s failure to halt the war against Libya infringed that Resolution. With respect to ISIS, however, I believe that the President’s continuing war is legal. The 2001 Authorization for Use of Military Force sanctions the use of necessary and appropriate force against those organizations that conducted the 9/11 attacks. Because al Qaeda perpetrated the 9/11 attacks, when the predecessor of ISIS joined al Qaeda in 2004, the predecessor thereby made itself a lawful target under the 2001 Authorization. Though ISIS splintered from al Qaeda in 2014, it retains the stigma of its former association with al Qaeda and remains subject to uses of military force by the United States.

Breaking the Cycle of Unrestrained Presidential National Security Power

As a number of scholars have argued, constitutional and statutory limits have failed to constrain presidential national security power after 9/11 (Fisher 2012b; Pious 2011; Glennon 2015; Edelson 2016). Both the George W. Bush and Obama administrations have found ways around legal limitations on presidential power, while a generally acquiescent Congress has often failed to act and Supreme Court decisions aimed at setting limits have failed to have an effect.If this diagnosis is right – that presidential power has broken free of the rule of law and must be reined in – then what is the prescription? How is this problem to be resolved, and how can a balance be struck between the need for sufficient presidential power to defend national security and the need for meaningful legal restraints on power? This paper will consider specific proposals aimed at achieving these goals. I will consider the role various actors can play: (a) members of Congress, (b) the press, (c) the public, (d) scholars, (e) executive branch lawyers and (f) the courts. My methodological approach is qualitative, based on an analysis of specific actions taken by past presidents, other executive branch actors, legislators, and judges. I use primary sources, including executive orders, Department of Justice memoranda, and court decisions. I also draw on relevant scholarship in the area, including the sources mentioned above. For those interested in finding ways to limit presidential power, recent history provides hopeful examples, including (1) actions members of Congress took in August 2013 to prevent President Obama from acting unilaterally against the Assad regime; (2) actions by some executive branch lawyers in both the George W. Bush (Jack Goldsmith on warrantless surveillance) and Obama administrations (Caroline Krass on military action in Libya after the War Powers Resolution window closed) and (3) legislative changes to bulk metadata collection following the Snowden revelations regarding surveillance. Recent history also provides cautionary tales, or examples to be avoided — for example, Congress’s failure to act regarding ISIS, Harold Koh’s definition of hostilities under the War Powers Resolution, and John Yoo’s memos advancing the idea of an unconstrained unitary executive.With a new president taking office next year, this is a useful moment to consider what actions can be taken to break the cycle of unrestrained presidential power. This paper proposes a number of specific ideas designed to achieve this goal.

The Contemporary Presidency: Judicial Restraint and the New War Powers

[I]t is the exclusive province of [C]ongress to change a state of peace into a state of war. (UnitedStates v. Smith 1806, 1230) [I]t is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. (Baker v. Carr 1962, 211-12) [N]one of the legislation drawn to the court's attention may serve as a valid assent to the Vietnam War. Yet it does not follow that plaintiffs are entitled to prevail. (Mitchell v. Laird 1973, 616). War Is a Three-Branch Question From the founding to 1950, war usually proceeded in constitutional order: congressional authorization followed by executive enforcement. Over that century and a half, federal judges adjudicated dozens of war-related disputes raised by private litigants that hinged on executive branch adherence to Congress's prior legislative direction. Today, presidents of both parties order new offensive military actions abroad without explicit congressional consent before or even during the conflict. Although House and Senate majorities eventually support these actions one way or another (bills and/or appropriations), on 10 occasions, members of Congress (up to 110 at a time) challenged presidential wars in federal court. These unsuccessful lawsuits deserve new attention because they reflect a quiet, but steady, three-branch constitutional revolution on war that has taken place in the United States, under both parties' watch and under a variety of foreign policy contexts. If all three branches now interpret congressional silence as consent, constitutional war processes have flipped, and the War Powers Resolution is a dead letter. This article offers three arguments about these developments, using case law, institutional archives, and interviews with members of Congress and their attorneys. (1) First, there is no constitutional reason for federal courts to demur on war powers suits filed by members of Congress, outside of decades of judge-made precedent. Federal judges and scholars are divided on whether courts should take these cases, not whether they can. Second, federal courts hold member--plaintiffs to a different standard than private interest litigants. Members of Congress must show supermajority disapproval of the president's unilateral actions whereas private war litigation once hinged on prior simple majority authorization of the action. Third, the legal postures of all three branches reflect deeply ingrained institutional habits, not partisan differences. Unlike other public policy areas, presidential war is not ideologically divisive. Reflecting this new normal, the United States has been engaged in a military campaign against the so-called Islamic State in Iraq and Syria (ISIS) since August 2014, with no Authorization for the Use of Military Force (AUMF). According to the Department of Defense, Operation Inherent Resolve has cost an average of $11 million per day for 450 days of operations, which destroyed or damaged over 16,000 targets. (2) While calling for new AUMF in the State of the Union Address in January 2015, and sending a proposal to Congress earlier that year, President Barack Obama and his administration maintained that the necessary authorization is already in place through the 2001 and 2002 AUMFs (against al-Qaeda and Iraq, respectively; Weed 2015b). While ISIS-related terrorist attacks in France have fueled some bipartisan criticism of administration strategy, a new AUMF is unlikely (Carney 2015). Despite repeated cries of lawlessness against the president on domestic policy actions, members of Congress have not pursued a lawsuit on the ISIS actions. Even if members did band together to file a suit that challenged the current ISIS campaign, it is unlikely to jump the formidable hurdles to member suits that federal courts have built over four decades. However, a House-sanctioned lawsuit against the Obama administration on enforcement of the Affordable Care Act (ACA) was recently granted standing to proceed on the merits regarding whether the administration spent money on ACA implementation that was not appropriated by Congress (see United States House of Representatives v. …

Executive Power in the U.S. Constitution: An Overview

This is a draft of an essay to be published as a chapter in the forthcoming Oxford Handbook of the U.S. Part I sets forth a methodology to address issues of executive power based in a historicist theory of constitutional change. Part II discusses what I take to be the central problem in the law of executive power -- to what extent can Congress regulate the president’s Article II powers? This problem is approached through the removal cases and the transition from Curtiss-Wright to Youngstown. Part III discusses presidential war powers and the War Powers Resolution by reviewing the argument of my recent book Long Wars and the Constitution. Finally, Part IV considers issues at the outer limits of executive power, including the power to disregard or not enforce laws on the ground that they are unconstitutional, emergency power and prerogative power. Part IV makes a new contribution to the debate on these topics by arguing that several key historical episodes thought to support presidential power in these respects, including the 1861 secession crisis and the impeachment of Andrew Johnson, have been misanalyzed. This revised version also features a different conclusion.

The Return of the Weapons of Mass Destruction Shell Game: President Obama, Syria, and the War Powers Resolution of 1973

The Return of the Weapons of Mass Destruction Shell Game: President Obama, Syria, and the War Powers Resolution of 1973

Libya and American war powers: war-making decisions in the United States

During the United States' military strikes in Libya in 2011, the debate over the authority to use force reached levels not experienced in recent American history. Many members of Congress, both Democrat and Republican, expressed concern over what they viewed as a usurpation of Congress's constitutional war powers. These concerns were exacerbated when the Obama administration maintained that it was not engaged in ‘hostilities’ and that the War Powers Resolution, which was intended to limit the president's war authority, did not apply to this use of force. Yet despite the strong levels of bipartisan constitutional pressure waged against the commander in chief, these efforts were generally discouraged, co-opted or simply opposed by the House and Senate leadership. This research examines the role of Congress's institutional and party leaders, specifically Speaker of the House John Boehner (R-OH), and Senators John Kerry (D-MA) and John McCain (R-AZ), and finds that their leadership was instrumental in keeping Congress's war powers authority subdued, which limited congressional interference in President Obama's military actions in Libya. Understanding these political dynamics is crucial to understanding when and how the world's sole superpower commits to overseas military actions.

Precedent Supporting the Constitutionality of Section 5(b) of the War Powers Resolution

President Obama did not go to Congress to obtain an authorization to use military force prior to ordering bombing operations on Libya in March 2011, which enlivened discord over the constitutionality and efficacy of the War Powers Resolution (“WPR”). This Article examines the applicable provision, § 5(b), which scholars have designated the most controversial and perhaps unconstitutional provision of the WPR. The paper succinctly addresses an Originalist/Structuralist conception of constitutional war powers to frame presidential transgressions that started with the Korean War and the Vietnam War, which were the impetuses that impelled Congress to adopt the WPR. The work then probes distinctions between receiving a congressional authorization to deploy the military into large-scale conflict, and indulging in unofficial sanctions to deploy U.S. soldiers into potential hostilities under the WPR; termination of combat operations under the WPR; and use of force operations by the Reagan, Bush, Clinton, and Obama Administrations since the WPR was enacted. A concluding proposal aspires to clarify the WPR.

Executive Warmaking Authority and Offensive Cyber Operations: Can Existing Legislation Successfully Constrain Presidential Power?

Offensive cyber operations represent a broad new frontier in warfare that allow states to achieve kinetic-like effects without using traditional means such as airstrikes and troop deployments. For example, in a recent debate in the Obama Administration in the lead-up to the deployment of NATO forces in Libya, lawyers and policymakers considered using such cyber attacks in lieu of traditional military operations to disable Libya’s air defense network. Yet, like many areas of emerging warfare, a bevy of questions concerning the legality of these new types of operations arise. In particular, American policymakers have only begun to question whether the use of cyber weapons – such as the Stuxnet virus purportedly developed by the United States and Israel and responsible for attacking and destroying Iranian uranium enrichment facilities – trigger traditional means of limiting the President’s war-making authority, such as the War Powers Resolution.This article examines the interaction of this new tool of warfare with the War Powers Resolution, one of the most controversial means by which Congress has attempted to limit the President’s ability to use his Article 2, Section 2 authority as Commander in Chief to deploy U.S. military forces. 50 U.S.C. sec. 1541–1548. At its core, the article answers the following questions: insofar as it is constitutional, can (and under what circumstances) the War Powers Resolution serve as an effective limit on the President’s Article 2, Section 2 power? Conversely, does this new type of tool help the executive branch evade Congressional oversight of U.S. military operations?

The Law: Military Operations in Libya: No War? No Hostilities?

The Obama administration produced two remarkable legal opinions about the use of military force against Libya. A memo by the Office of Legal Counsel reasoned that the operations did not amount to “war.” Later, after military actions exceeded the 90‐day limit of the War Powers Resolution (WPR), President Obama was advised by White House Counsel Robert Bauer and State Department Legal Advisor Harold Koh that the operations did not even constitute “hostilities” within the meaning of the WPR. This article examines those interpretations and other legal arguments by the executive branch, including the claim that the military actions in Libya had been “authorized” by the UN Security Council and North Atlantic Treaty Organization allies.

U.S. Military Actions in Libya Raise Questions of Domestic Legal Authority; House Resolution Rebukes President for Noncompliance with War Powers Resolution

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Gerald Ford, the Mayaguez Incident, and the Post-Imperial Presidency

In 1975 Gerald Ford became the first President bound by the War Powers Resolution. Enacted in 1973, members of Congress, still fuming over the revelations crystallized by the Pentagon Papers that the Gulf of Tonkin Resolution was a sham, sought to prevent future Presidents from starting future Vietnam Wars. Though Ford voted against the measure twice as a Congressman, as President he respected the law and Congress enforcing it. This article explores Ford's efforts and actions as he complied with the law. Ford's attitude and acquiescence reflected his efforts he heal the nation.

Once More Unto the Breach: American War Power and a Second Legislative Attempt to Ensure Congressional Input

Once again embroiled in an unpopular overseas armed conflict, the United States faces difficult questions concerning the constitutional use of military force. Records from the Constitutional Convention suggest the Framers intended to lodge America's power to go to war with the Congress. While American presidents' early use of military force displays deference to the legislature, more recent military actions illustrate the executive's dominance in making war. Notwithstanding a few early court decisions in Congress 's favor, the judiciary has been unhelpful in restoring the constitutional Framers' vision for the administration of the war power Congress, therefore, has been forced to act alone in attempting to revive the legislature's role in the decision to go to war After several unsuccessful attempts, Congress's passage of the War Powers Resolution of 1973 appeared to finally re-inject congressional input in the war-making process. However subsequent jurisprudence, scholarly debate, and presidential disregard for the law have revealed the War Powers Resolution's various inadequacies. Accordingly, this paper proposes that a new law-the War Powers Appropriations Act-be passed to protect the congressional war powers afforded by the Constitution. By protecting Congress's role via the legislature's constitutional power to appropriate funds, the War Powers Appropriations Act represents a solution that accomplishes the goal of forcing the executive to consult with Congress, while avoiding the potential pitfalls of unconstitutionality, inartful drafting, and presidential disregard.

The War Powers Resolution, Once Again

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