Is the War Powers Act Constitutional?

The Constitution of the United States is the supreme law of the United States of America. Through the Constitution, Congress is given the authority to declare war, to make the rules that govern the military, and to provide appropriations to the armed services, but the Constitution also designates the president commander in chief of the armed services. There are many that argue that the president’s constitutional jurisdiction over war powers has steadily increased since the nation’s founding.

The War Powers Act of 1973 was passed by Congress over President Nixon's veto to increase congressional control over the executive branch in foreign policy matters, specifically in regard to military actions short of formally declared war. Its central provision prohibited the President from engaging in military actions for more than sixty days, unless Congress voted approval. The Act was an attempt to rein in the war-making authority of the president by demanding, among other things, that the executive notify Congress within forty-eight hours after deploying the armed forces in combat. The stated purpose of the act was to “fulfill the intent of the framers . . . and insure that the collective judgment of both the Congress and the president will apply to the introduction of United States Armed Forces into hostilities . . . and to the continued use of such forces.” While generally complying with the requirements of the War Powers Act, every presidential administration since Nixon’s has argued that the act infringes on the president’s constitutional duty as commander in chief. Consequently, the constitutionality of the War Powers Act remains contested. Some constitutional scholars maintain that Congress is within its right to exercise oversight in foreign policy matters, reining in the executive where necessary. Other scholars side with executive-branch officials who consider the War Powers Act an infringement on the president’s constitutional authority.

            Usually those who would argue for the constitutionality of the War powers Act would argue that the Act attempts to restore the balance of shared control of the military. In addition, the United States has not officially declared war since World War II. The war powers act reflects the will of the American people. Those arguing against the constitutionality of the War Powers Act may suggest that the Constitution clearly defines the role of the president in foreign policy along with defining the role of Congress in military action. The Supreme Court has upheld an expanded interpretation of the president’s authority in matters of foreign policy. All presidents since Mr. Nixon have challenged the law's constitutionality, and its provisions requiring troop withdrawal have never been activated. The debate over the constitutional separation of powers concerning the use of armed force abroad during the past three decades has been unimpressive on both sides. Few commentators have taken the time to look seriously at the historical aspect of the problem, and some act as if the 1972-73 debates were an issue of first impression. Throughout most of our history, both Congress and the President understood that decisions regarding foreign affairs were different from domestic issues and were the province of the executive except in areas where the Constitution had made a clear exception. But by the early 1970s, the theoretical and textual basis of that distinction had apparently been forgotten at both ends of Pennsylvania Avenue. Legislators and their advocates looked through the Constitution and discovered there was no mention of "national security" or "foreign affairs." The theory quickly emerged that there should be no difference between domestic and foreign affairs and Congress was the "senior partner" in making policy for both.