By this time in our history, one supposes, there could not be a presidentially-ordered use of military force without the inevitable opposition party blather about how the commander-in-chief is violating the War Powers Act (WPA). And so it is that Senator Tim Kaine, D-Va., has introduced a resolution that would purport to direct President Trump to cease hostilities with Iran in the absence of a congressional authorization.

Though inevitable, the exercise is pointless.

The WPA (often called the War Powers Resolution) was enacted over a weakened President Richard Nixon’s veto in 1973 by the Democrat-dominated Congress of the late Vietnam War era. It was an effort to limit the president’s power to commit American forces to battle without a declaration of war or other congressional authorization.


From the time of its passage until the Obama administration, all presidents regarded it as an unconstitutional infringement on the president’s Article II powers.

Nonetheless, presidents have tended to pay lip-service to the WPA: claiming to act “consistently” with its provisions, but maintaining that they were doing so out of inter-branch comity, not legal compulsion. And when push came to shove, even President Obama dodged the WPA – taking the absurd position that his unauthorized, unprovoked attacks on Libya were too piddling to be considered a “war” or a use of military force.

The WPA purports to bar the president from ordering our armed forces into battle unless there has been a congressional declaration of war, a specific statutory authorization of the use of military force, or an actual attack on the United States or its forces. It calls for the president to consult with Congress before ordering our forces into hostilities, and to report to Congress within 48 hours of so ordering them. If Congress does not authorize military action within 60 days, the WPA says the president must withdraw our forces.

The WPA is probably unconstitutional. If the president is vested with authority by the Constitution, that authority may not be limited by a mere statute. The president’s Article II powers as commander-in-chief include the power to use military force when the United States or its vital interests are threatened.

Indeed, during the Civil War, the Supreme Court held in the Prize Cases that, when the United States is under attack, the president has not merely the constitutional power but the duty to use whatever force is necessary to repel the attack, regardless of whether Congress has permitted the use of force.

Moreover, the WPA would enable Congress to direct the president to withdraw forces by a joint resolution; but the Supreme Court has held that such legislative vetoes are unconstitutional – law can only be enacted when the president signs legislation passed by both houses (unless there is a veto override, as there was with the WPA).

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