The first War Powers Act happened in 1941. It gave the US President broad powers in order to fight the Second World War. It was quickly followed by a second War Powers Act in 1942. The third War Powers Act was passed in 1973. Every President since then believed that the War Powers Act is unconstitutional and acted accordingly. To make matters worse, the US District Courts repeatedly would not render a decision on the War Powers Act.
War Powers Act of 1941 and 1942
US District Courts and the War Powers Act
Clearly, this dispute will remain between the President and Congress. Congress cannot force the President to abide by the War Powers Act unless the US District Courts decide to hear the arguments and render a verdict. And that is not likely.
To make matters worse, the House Of Representatives currently had two committees working on the War Powers Act of 2011. After reading the content of this act before it went into committee, I am confident that all future Presidents will not abide by it. To find the latest war powers bill, go to the Thomas Library of Congress and search for HR 1609.
That leaves us with the US Constitution and the Federalist Papers as the standard by which to interpret the powers of the President and the powers of Congress with regard to war. Here is a link to an article explaining the history of war and treaty powers.
Does Congress have procedures for declaring war? The answer is yes and I found an excellent article on the history of the use of military force and the actions of Congress in each case. You will need Adobe Reader for this link:
I think the current controversy over the War Powers Act will never be resolved. It will be revived with every war we enter. The President, as commander in chief of the military, must be given flexibility in initiating a war. In many instances the President cannot afford to wait for Congress to have committees study the justification for the war, draw up a declaration of war, present it on House and Senate floors for a vote, have a joint committee generate the final wording of the declaration and send it back to both floors for a final vote. That would take months if not years. Congress would have to decide how much power to give the President during the war and when that power is terminated. It’s not a simple matter. National election politics only make the task more difficult.
Think about it. If Congress simply did a up-down vote on a declaration of war, would the voters be satisfied that all Congressional members really had time to study the international situation and make an intelligent determination?
What about war that doesn’t involve an immediate threat to national security? Consider our unmanned drones that hit targets in numerous foreign nations. They are fighting Al Qaida and other terrorist cells, but there is no clear immediate security risk. There is a long term security risk.
Is an amendment to the US Constitution the only way to resolve this issue? I think so. This issue is clearly a Constitution issue that needs to be addressed in an effective manner. The War Powers Act does not adequately address the issue because the US District Courts and the US Supreme Court have not addressed it.