In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights its protects. Today’s topic: the requirements of the War Powers Act of 1973.
The statement at issue:
“The Constitution requires the President to ‘take care that the laws be faithfully executed,’ and one of those laws is the War Power Resolution, which requires an approving action by Congress or withdrawal within 90 days from the notification of a military operation….In five days, the Administration will be in violation of the War Powers Resolution unless it asks for and receives authorization from Congress or withdraws all U.S. troops and resources from the [Libya] mission.”
— Speaker of the House John Boehner, in a letter Wednesday to President Obama
“The President had the constitutional authority to direct the use of force in Libya because he could reasonably determine that such use of force was in the national interest. Prior congressional approval was not constitutionally required to use military force in the limited operation under consideration.”
— Office of Legal Counsel, Justice Department, memo of April 1 to Attorney General Eric Holder
We checked the Constitution, and…
The Speaker is right: the Constitution does require the President to “execute” the laws passed by Congress, but the question of whether the President has acted illegally under the War Powers Resolution is not necessarily a question the Constitution can answer. The Constitution does not dictate how the President is to implement a specific law, such as the War Powers Resolution. Short of a direct constitutional confrontation between Congress and the President, such as a vote by both houses of Congress to cut off funds for a specific military mission (subject to presidential veto, of course), disagreements over whether the Resolution has been “faithfully executed” or has been violated very likely either will go unresolved, or will be worked out by political compromise.
The Supreme Court has never ruled on the constitutionality of the demands that the Resolution has sought, from the beginning, to impose upon the President, so it has remained for the two “political branches” to find ways to live with their disagreements, however fundamental, over use of military force.
Since 1973, when the War Powers Resolution was passed over a veto by President Richard Nixon, every President has refused to accept the constitutional premise of that legislation — that is, that Congress may dictate to the White House the specifics of how armed force is used abroad by the U.S. But every President also has taken steps, each time U.S. troops were committed to hostilities overseas, to consult Congress and to try to stay within the letter — if not the fullest spirit — of the Resolution’s reporting requirements.
The House of Representatives on June 3 sought to warn President Obama about the duties the House believed were imposed upon him by the 1973 Resolution. But, since that measure was not approved by the Senate and sent to the President for his signature, it had no constitutionally or legally binding effect.
The Speaker’s letter on Wednesday said the President could make two responses to the Speaker’s demand for a request for congressional approval: either a claim that Libyan operations are not covered by the Resolution, or that the Resolution is itself unconstitutional. The President, however, is not limited to those responses — and, indeed, has no binding constitutional duty to respond at all. The President’s government lawyers concluded, even before the Libyan operation began, that official consultation with members of Congress was enough to satisfy the Resolution, and the President has chosen to follow that advice. The Constitution does not assign to the House, acting alone, the authority to force him to change his mind.
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.