The War Powers Act Is Full of Holes

The War Powers Resolution of 1973, more commonly referred to as The War Powers Act, is a federal law designed to check the President's power to commit armed forces to hostile action without congressional approval. The law contains three major provisions.

First, the President must consult with Congress "in every possible instance" before engaging in such hostilities. That provision usually entails the President meeting with congressional leaders to notify them of impending military actions.

Second, the President must report to Congress within 48 hours of deploying troops on foreign soil, waters, or airspace.

Third, troops must be withdrawn within 60 days (with a potential 30-day extension) unless Congress declares war, passes a specific authorization, or is physically unable to meet.

The War Powers Act also includes an “emergency exit” clause empowering Congress to direct the removal of troops at any time by passing a concurrent resolution, which is not subject to a presidential veto.

O.K., now that we all have a cursory understanding of the War Powers Act, its provisions and restrictions, allow me to weigh in on the legislation itself.

I don’t like it.

You see, the War Powers Act was passed during the Vietnam War in response to President Nixon’s secret bombing of Cambodia, something that his opponents thought was not only unwise, but also unconstitutional. Nixon vetoed the measure, but Congress overrode his veto and the act became law.

The bone of contention between Nixon and Congress – and between every President and every Congress since our nation’s founding – is this: who really calls the shots when it comes to military action that falls short of all-out war? Article I, Section 8 of the U.S. Constitution clearly grants Congress the power to raise and support armies, maintain a navy, declare war, and call forth the militia. However, under Article II, Section 2, as Commander in Chief, the President holds supreme command over the Army, Navy, and state militias when they are called into federal service.

Hmmm… there is certainly room for more than one interpretation and a whole lot of confusion.

Add one super-sized ego in the White House and 525 similar sized egos on Capitol Hill and you have the makings of a power struggle on steroids.

In this day and age, when some military and national defense decisions must be made in the blink of an eye, there is no doubt that the President must retain the authority to act decisively and dare-I-say unilaterally, albeit with lots of advice and counsel. However – and here is where I have serious problems with the War Powers Act – the 60 to 90-day window in which he can exercise that power is way too long and ripe for abuse.

President Trump is fond of saying that a country without borders is not a country… and he’s 100% right. Well, a military action that drags on for more than a week or two – let alone two to three months – isn’t a military action at all. It is a war; and only Congress can declare it.

I say that as a constitutional conservative first and a party loyalist second. Frankly, it’s time that people on both sides of the aisle started playing by the rules our Founding Fathers established 238 years ago.