War Powers Act of 1973 Summary

  • Last updated on November 11, 2022

Congressional joint resolution placing certain restrictions and reporting requirements on the president’s deployment of military forces in hostilities.

The War Powers Act (formally the War Powers Resolution) was an effort by Congress to regain lost influence in U.S. military policy. Specifically, the act, passed on November 7, 1973, over a veto by President Richard M. Nixon, established certain requirements for the president to meet and follow when acting to deploy military forces in a hostile environment. No president has ever accepted the act as a legitimate constraint on the presidential war powers. Still, presidents in most circumstances have followed the form, if not the spirit, of the act’s reporting requirements. Despite protracted political and academic debates as to the law’s constitutionality, the Supreme Court has never ruled directly on that issue.War powers

Tonkin Gulf Resolution

The War Powers Act can be viewed as a congressional reversal of its Tonkin Gulf ResolutionTonkin Gulf Resolution in 1964. That resolution, which marked the full commitment of the U.S. military to aiding South Vietnam, came in direct response to a plea by President Lyndon B. Johnson after an attack on U.S. ships by North Vietnamese planes. Through the resolution, Congress expressed that it “approves and supports the determination of the president, as commander in chief, to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression.”

The Tonkin Gulf Resolution was viewed as the functional equivalent of transferring to the president Congress’s constitutional power to declare war. Although the United States never formally declared war against North Vietnam, the ensuing decade saw an enormous, escalating commitment of U.S. troops, aircraft, and other military material to fighting the North Vietnamese. The mounting numbers of U.S. casualties and the dwindling hope of military or political success made the Vietnam WarVietnam War a source of heated political battles in the United States, as well as popular demonstrations, civil unrest, and other attacks on the political “establishment.”

As public sentiment increasingly turned against the war in the late 1960’s, members of Congress felt more and more frustrated by their relative powerlessness to call a halt to a war Congress never formally declared. Out of this growing frustration emerged the 1973 War Powers Act. Coming near the beginning and end of major U.S. involvement in the Vietnam War, the Tonkin Gulf Resolution and the War Powers Act serve as bookmarks to the era of Congress’s near-delegation of its war powers.

Provisions

The War Powers Act includes four major provisions limiting the president’s power to deploy forces into hostilities: First, the president shall consult with Congress “in every possible instance” prior to introducing forces into actual or imminent hostile situations; second, he or she must report to the Congress in writing within forty-eight hours after introducing forces in such situations; third, he or she must withdraw those forces within sixty days of that report, unless he or she judges that the troops’ safety requires a thirty-day extension or Congress specifically authorizes their continued deployment; and fourth, Congress may, with a concurrent resolution, direct the president to withdraw those forces earlier than the sixty to ninety days provided in the third provision.

President Nixon vetoed the act, deeming it an unconstitutional intrusion in the president’s role as commander in chief. However, Congress overrode the president’s veto, and the act became law.

Constitutional Challenges

Congress and the president have repeatedly clashed over the constitutionality and interpretation of the act since its passage. Members of Congress in particular have charged that presidents have failed to abide by the various provisions, most particularly the “consultation” provision. Although presidential notification of Congress only hours before an attack might be difficult to define as “consultation,” the law gives little direction as to the amount of advance notice that is required to make “consultation” meaningful. In addition, the “in every possible instance” clause seems to allow for circumstances when consultation is not possible.

The forty-eight-hour reporting requirement is less vague but also imposes little congressional control over presidential war powers. Even when notifying Congress of military deployments into hostile situations, presidents have been careful not to directly link the notification to the War Powers Act in order to avoid a tacit endorsement of the alleged constitutionality of the law.

The fourth provision of the act, permitting Congress to force the president to withdraw military forces, has drawn the most significant constitutional objections. Congressional action on this provision is claimed to amount to a legislative veto.

Elements of the War Powers Act have been examined by federal courts, including, for example, a district court’s consideration of the act’s definition of “hostilities” and other matters. In that case, Crockett v. Reagan[case]Crockett v. Reagan[Crockett v. Reagan] (1982), the court found the “hostilities” question to be a matter for congressional, and not judicial, investigation. It also avoided a direct judgment of the sixty-day withdrawal requirement. Courts all the way up to the Supreme Court have been reluctant to address the various aspects of the act that many consider to be political questions.

However, the Court’s decisions on other cases have been subsequently considered by scholars in the context of the act. For example, in the Prize Cases of 1863, the Court declared that determining whether national security considerations justify a president’s military response is a matter “to be decided by him.” More recently, the Immigration and Naturalization Service v. Chadha[case]Immigration and Naturalization Service v. Chadha[Immigration and Naturalization Service v. Chadha] decision of 1983, which concerns legislative vetoes, has been considered by some to signal the unconstitutionality of the War Powers Act’s provision permitting Congress to demand the withdrawal of troops.

Further Reading
  • Fisher, Louis. Constitutional Conflicts Between Congress and the President. 4th ed. Lawrence: University Press of Kansas, 1997.
  • _______. The Politics of Shared Power: Congress and the Executive. 4th ed. College Station: Texas A&M University Press, 1998.
  • Hall, David Locke. “The War Powers Resolution.” In The Reagan Wars: A Constitutional Perspective on War Powers and the Presidency. Boulder, Colo.: Westview Press, 1991.
  • U.S. Congress. The War Powers Resolution: Relevant Documents, Reports, Correspondence. Washington, D.C.: U.S. General Printing Office, 1994.

Foreign affairs and foreign policy

Presidential powers

Vietnam War

War powers

Categories: History Content