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WAR POWERS PROVISIONS

The following is found on page 644 Part III "POWERS OF THE PRESIDENT"

The 1973 War Powers Resolution.

"Stated that the President could commit U.S. Armed Forces to hostilities or situations where hostilities might be imminent only pursuant to a declaration of war, specific statutory authorization, or a national emergency created by an attack upon the United States, its territories or possessions, or its armed forces.

"Urged the president "in every possible instance" to consult with Congress before committing U.S. forces to hostilities, or to situations where hostilities might be imminent, and to consult Congress regularly after such a commitment.

" Require the president to report in writing within forty-eight hours to the speaker of the House and president pro tempore of the Senate on any commitment or substantial enlargement of U.S. Combat forces abroad, except for deployments related solely to supply, replacement, repair or training; required supplementary reports at least every six months while such forces were being engaged.

" Authorize the Speaker of the House and the president pro tempore of the Senate to reconvene Congress if it were not in session to consider the presidents report.

"Requiring the termination of troop commitment within sixty days after the presidents initial report was submitted, unless Congress declared war, specifically authorized continuation of commitment, or was physically unable to convene as a result of an armed attack upon the United States: allowed the sixty day period to be extended for up to thirty days if the president determined and certified to Congress that unavoidable military necessity respecting the safety of U.S. forces required their continued use in bringing a prompt disengagement.

"Allowed Congress, at any time U.S. forces were engaged in hostilities without the declaration of war or specific congressional authorization, by concurrent resolution to direct the president to disengage such troops.

" Setup Congressional procedure for consideration of any resolution or bill introduced pursuant to the provisions of the resolutions.

"Provided that if any resolution was declared invalid, the remainder of the resolution would not be affected. term military engagements must have explicit congressional authorization, Congress included a provision in the resolution denying that the president could infer congressional authorization for the introduction of troops into hostilities or potentially hostile situations "from any provision of law...

Including any provision contained in any appropriation Act, unless such provision specifically authorizes the United States Armed Forces into hostilities, or into such situations and states that is intended to constitute specific statutory authorization within the meaning of this resolution."

Page 645.

The provision also denied the president the authority to infer Congressional authority for presidential war making from a ratified treaty. Thus Congress attempted to restrict the means through which it can be said to have approved presidential war making to explicit authorization of military action.

Passage of the War Powers Resolutions was heralded by its supporters as a major step in reassuring Congress's war-making powers. Republican senator Jacob Javits of New York, a chief architect of the Senates version of the legislation, declared:

With the war powers resolutions passage, after 200 years, at least something will have been done about codifying the implementation of the most awesome power in the possession of any sovereignty and giving the broad representation of the people in Congress a voice in it. This is critically important, for we have just learned the hard lesson that wars cannot be successfully fought except with the consent of the people and their support. (52).

The resolution was opposed by some conservatives in both houses and a small group of liberals who agreed that the measure was unconstitutional, but for different reasons. The leading liberal opponent of the resolution, Democratic senator Thomas E. Eagleton of Missouri, called the act "the most dangerous piece of legislation" he had seen in his five years in the Senate. (53) Eagleton and other liberal critics of the War Powers Resolution charged that although it may force the president to deal with Congress within ninety days after troops are committed, it sanctions virtually any use of the military by the president during those ninety days, thereby enhancing rather than restricting presidential war-making powers. He warned: By failing to define the presidents powers in legally binding language, the bill provided a legal basis for the presidents broad claims of inherent power to initiate a war. Under the formula, Congress would not participate in the war making decision until after forces had been committed to battle."(54) Although the resolution gave Congress the power to withdraw from a conflict, Eagleton believed Congress would rarely have the political will to do so, because such actions would be seen by many constituents as unpatriotic or lacking in resolve.

In President Nixon's October 24, 1973 veto message of the war powers bill, he stated that the resolution would impose restrictions on the authority of the president that would be "both unconstitutional and dangerous to the interest of the nation." (56) On November 7, the House overrode the presidents veto by a vote of 284-135--only four votes more than the required two-thirds majority. Later in the day the Senate followed with a 75-8 vote. The Congressional override was made possible, in part, by the Watergate scandal, which had weakened Nixon's support among legislators of his party.

LEGAL QUESTIONS

Many of the War Powers Resolution's critics and even a few of its supporters have expressed doubts that all its provisions will stand up to judicial review. President Nixon denounced the war powers bill as unconstitutional when he vetoed it in 1973. The major provision of the bill, he contended, would purport to take away, by a mere legislative act authorities which the..................