Are we at war?

The U.S. Constitution in Article 1, Section 8, Clause 11, states that one of the functions of Congress is "To declare War…", yet despite the many wars or military engagements the U.S. has been involved in, Congress has formally declared war only five times, the last time being for World War II. Instead, the Congress has passed resolutions authorizing force, such as the 1964 Gulf of Tonkin resolution that formally opened the Vietnam War, or the one for the Persian Gulf War. The war on terrorism resolution is similarly ambiguous.

In 1973, Congress passed the War Powers Resolution which provides some checks on the President's evolved power to wage war, including compelling information about and justification of the entering into hostilities. This Resolution probably does not apply to covert military action, such as Special Forces Direct Action, although such would fall under the jurisdiction of Congress's intelligence or defense committees.

The resultion below speaks directly to this...

Withdraw U.S. Troops from Afghanistan (H Con Res 248)

FLOOR SITUATION: The Rules Committee is expected to recommend a rule that would alter the statutory procedures for considering the resolution. It is expected that the recommended rule will limit debate to three hours, with no amendments or motion to recommit permitted. The measure is expected to be managed by Rep. Kucinich, D-Ohio. The time in opposition is expected to be managed by Chairman Berman, D-Calif., and/or Rep. Ros-Lehtinen, R-Fla.

BACKGROUND: The Foreign Affairs Committee has not acted on the resolution, which was introduced March 4 by Rep. Dennis J. Kucinich, D-Ohio.

War Powers Resolution

The War Powers Resolution (PL 93-148) was enacted by Congress over the veto of President Richard Nixon in 1973, mainly to ensure that the executive and legislative branches would share in decisions that could lead to war.
The drafters sought to circumscribe the president's authority to use armed forces abroad in hostilities or potential hostilities without a declaration of war or other congressional authorization, yet provide enough flexibility to permit the president to respond to attacks or other emergencies. Since then, the resolution has remained the focus of controversy on the respective war powers of the president and Congress under the Constitution.

The law requires the president to notify Congress in a timely fashion when U.S. troops are sent abroad with a strong probability that they will engage in combat. In addition, section 5(b) of the law specifically calls for U.S. troops to be removed from foreign territory within 60 days, unless Congress explicitly gives its approval for the troops to remain, either through a declaration of war or authorization for military action. Moreover, the 1973 law states its primary purpose as ensuring "that the collective judgment of both the Congress and president will apply to the introduction of U.S. Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances." In effect, varying interpretations of "collective" have been at the heart of the debate over the War Powers Act ever since.

Section 5(c) of the War Powers Resolution requires the president to remove U.S. forces that are engaged in hostilities outside the United States without a declaration of war or specific statutory authorization if the House and Senate adopt a concurrent resolution directing such a withdrawal.
Concurrent resolutions are not submitted to the president for his signature.

The War Powers Resolution stipulated procedures for congressional consideration of measures relevant to the powers established by the law. For example, when a concurrent resolution directing the president to withdraw troops is introduced, then the relevant House and Senate committees are required to act within 15 days, and once reported by those committees, each chamber must act within three days. The law, however, permits the chambers to vote to alter those procedures.

Major Developments Since 1973

Reagan & Bush Years
In the 1980s, President Ronald Reagan's military actions against Grenada and Libya, which occurred without congressional consultation, reinforced the impression that Congress was being "left out of the loop."
The impression culminated in congressional attempts to bring suit, under the War Powers Resolution, against the Reagan administration's reflagging of Kuwaiti oil tankers as U.S. ships during the Iran-Iraq War. These efforts, led by the House Democratic Study Group, were overturned when a federal district court ruled that the suit was political in nature, and thus not subject to its jurisdiction.

Prior to the first Persian Gulf War, President George H.W. Bush sought congressional approval for the U.S.-led military operation to drive Iraq out of Kuwait. The president did so under congressional pressure, however, and portrayed his action as a courtesy to Congress, not as something he was legally obligated to do. Congress subsequently passed an Authorization for Use of Military Force Against Iraq (PL 102-1) by a vote of 250 to 183 in the House and by 52 to 47 in the Senate. Only 86 Democrats in the House and ten in the Senate backed the measure.

Clinton Administration
Congress used the withdrawal provisions of the War Powers Resolution on three occasions, all during the years of the Clinton administration. In 1993, the House adopted a resolution directing the president to remove troops from Somalia by March 1994 - although President Bill Clinton had already agreed to withdraw U.S. forces by that date.

During the conflict in the Balkans, the House, in 1998 and 1999, rejected resolutions invoking the War Powers Resolution that would have required U.S. troop withdrawals from Bosnia-Herzegovina and the Republic of Yugoslavia.

Since Sept. 11
Under the terms of the War Powers Act, a withdrawal resolution cannot be considered if Congress has enacted a declaration of war or an authorization for the use of military force.

On Sept. 18, 2001, President George W. Bush signed a joint resolution (PL 107-40) that authorized the use of military force in the wake of the terrorist attacks of September 11 (see House Action Reports Fact Sheet No.
107-29, Sept. 14, 2001). That resolution authorized the president "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

The 2001 resolution provided statutory authorization for the use of force according to the War Powers Resolution of 1973. Specifically, the resolution stated, "Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section
5(b) of the War Powers Resolution." The measure also stated, "nothing in this resolution supersedes any requirement of the War Powers Resolution."

Constitutional Concerns

The Supreme Court has cast doubt on the legality of congressional acts such as the War Powers Resolution. In 1983, the Supreme Court, in INS v.
Chadha, ruled unconstitutional the legislative veto provision in a section of the Immigration and Nationality Act. A "legislative veto" refers to when Congress or one of its chambers seeks to nullify an action by the president or other part of the executive branch through adoption of a simple or concurrent resolution. Although the 1983 case involved the use of a legislative veto by a single chamber, the decision cast doubt on the validity of any legislative veto device that was not presented to the president for his signature.

The Court held that to accomplish what the House attempted to do in the Chadha case "requires action in conformity with the express procedures of the Constitution's prescription for legislative action: passage by a majority of both Houses and presentment to the President." In short, the court affirmed that lawmaking requires presidential participation, thereby arguably invalidating laws containing legislative vetoes, including the two-chamber withdrawal process by the concurrent resolution outlined in the War Powers Resolution.

In light of the Court's decision, and since section 5(c) of the War Powers Resolution requires forces to be removed by the president if Congress so directs by a concurrent resolution, many constitutional scholars believe that the War Powers Resolution is constitutionally suspect under the reasoning applied by the Court in Chadha. Other legal analysts believe, however, that the law is in a unique category and should not be compared to other statutes containing a legislative veto.

The Afghanistan War

Two months ago, President Obama ordered the deployment of an additional 30,000 U.S. troops to Afghanistan, bringing the total U.S. presence to almost 100,000 troops. The deployment, which will be staged over six months, with the full additional complement being in-country by this summer. Allied troop levels are expected to increase by 5,000, to 10,000 soldiers, bringing their contributions to over 35,000. Critics claim, however, that many of the additional troops pledged by the allies may never be sent. In addition, Germany, France, Italy, and some other European allies continue to prohibit most of their forces from being deployed in the more dangerous southern and eastern regions of the country. Consequently, soldiers from the United States, Britain, Canada, Denmark, and the Netherlands have borne the brunt of the fighting and casualties, as Taliban forces have increased their operations. The perceived imbalance has created new strains in the NATO alliance and may have contributed to the fall of the Dutch government last week.

Prior to Congress's January return, Rep. Kucinich circulated a "dear colleague" letter announcing his intention to invoke the War Powers Resolution by introducing resolutions to require the withdrawal of U.S.
troops from Afghanistan and Pakistan. He argues that the 2001 joint resolution authorizing the use of force did not supersede the War Powers Resolution, thus permitting Congress to "revisit the constitution question of war powers at a later date."

SUMMARY: This resolution directs the president, pursuant to section 5(c) of the War Powers Resolution, to remove U.S. armed forces from Afghanistan within 30 days of adoption of this concurrent resolution - unless the president determines that it is not safe to remove U.S. forces before the end of that period.

Under the resolution, even if the president determines that U.S. forces cannot be removed safely within 30 days, U.S. forces would still have to be removed by December 31, or earlier if the president determines that such forces can be safely removed.

AMENDMENTS: None permitted.

COMMENTARY: The administration had not issued a formal position as of press time Friday. Concurrent resolutions are not submitted to the president for his signature.