Presidential Prerogative?

The conflict in Iraq and Afghanistan have led some to wondering about the president’s authority when it comes to war. Did President Bush have the authority to go to war? In a recent article in the USA Today, Susan Page quotes former Secretary of State James Baker as saying, “The Constitution makes the president commander in chief but also says Congress has the power to ‘declare war.’ ” From what I remember of the constitution, this is a correct statement. However, the War Powers Act of 1973 changed things a bit.

SEC. 2. (c)

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces [italics mine].


SEC. 3.

The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.

As if that is not murky enough, the War Powers Act goes even further:

SEC. 5. (b)

Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.

SEC. 5. (c)

Notwithstanding subsection (b), at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution [italics mine].

So, what does all this mean? Does it truly imply that the president can go to war as long as our nation is threatened with the possibility of attack? Can he go to war as long as he consults with Congress first? Does it mean that Congress didn’t have to declare war in this current conflict because of the threat that we would be attacked again?

It certainly makes things a bit less concrete when it comes to discussing the constitutionality of the current conflict.

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