Editing War Powers Resolution (section)

==Questions regarding constitutionality==
{{See also|Separation of powers under the United States Constitution|War Powers Clause}}
The War Powers Resolution has been controversial since it was passed.<ref>{{cite web |url=http://findarticles.com/p/articles/mi_m1079/is_n2140_v88/ai_6876296 |title=The war powers resolution |publisher=US Department of State Bulletin |date=1988-09-15 |access-date=2008-07-09}} "The War Powers Resolution has been controversial from the day it was adopted over President Nixon's veto. Since 1973, executive officials and many Members of Congress have criticized various aspects of the law repeatedly."</ref> In passing the resolution, Congress specifically cites the [[Necessary and Proper Clause]] for its authority.<ref>War Powers Joint Resolution, §2(b).</ref> Under the Necessary and Proper Clause, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution not only its own powers but also all other powers vested by the Constitution in the ''Government of the United States'', or in ''any department or officer'' thereof.

There is controversy over whether the War Powers Resolution's constraints on the President's authority as Commander-in-Chief are consistent with the Constitution.<ref>Rushkoff, Bennett C. "A Defense of the War Powers Resolution." Yale Law Journal 93, no. 7 (June 1984): 1333-35.[http://hdl.handle.net/20.500.13051/16288]</ref> Presidents have therefore drafted reports to Congress required of the President to state that they are "consistent with" the War Powers Resolution rather than "pursuant to" so as to take into account the presidential position that the resolution is unconstitutional.<ref>{{cite web|url=https://www.everycrsreport.com/reports/RL33532.html |title=War Powers Resolution: Presidential Compliance |date=2012-09-25 |access-date=2021-02-18}}</ref>

One argument for the unconstitutionality of the War Powers Resolution by [[Philip Bobbitt]]<ref>"War Powers: An Essay on [[John Hart Ely]]'s ''War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath''," ''Michigan Law Quarterly'' 92, no. 6 (May 1994): 1364–1400.</ref> argues "The power to make war is not an [[enumerated power]]" and the notion that to "declare" war is to "commence" war is a "contemporary textual preconception". Bobbitt contends that the [[Founding Fathers of the United States|Framers]] of the Constitution believed that statutory authorization was the route by which the United States would be committed to war, and that 'declaration' was meant for only [[total war]]s, as shown by the history of the [[Quasi-War]] with France (1798–1800). In general, constitutional powers are not so much separated as "linked and sequenced"; Congress's control over the armed forces is "structured" by appropriation, while the President commands; thus the act of declaring war should not be fetishized.{{clarify|date=March 2015}} Bobbitt also argues that "A democracy cannot ... tolerate secret policies" because they undermine the [[Legitimacy (political)|legitimacy]] of governmental action.

A second argument concerns a possible breach of the 'separation of powers' doctrine, and whether the resolution changes the balance between the Legislative and Executive functions.
This type of constitutional controversy is similar to one that occurred under President [[Andrew Johnson]] with the [[Tenure of Office Act (1867)]]. In that prior instance, the Congress passed a law (over the veto of the then-President) that required the President to secure Congressional approval for the removal of Cabinet members and other executive branch officers. The Act was not declared unconstitutional by the [[U.S. Supreme Court|Supreme Court of the United States]] until 1926.<ref>{{cite web |title=Myers v. United States, 272 U. S. 52 (1926)|url=http://supreme.justia.com/us/272/52/case.html}}</ref> When Andrew Johnson violated the Act, the [[United States House of Representatives|House of Representatives]] [[Impeachment of Andrew Johnson|impeached]] him; action in the Senate to remove him [[Impeachment of Andrew Johnson|failed by one vote]] during [[Impeachment trial of Andrew Johnson|his impeachment trial]].

Here, the separation of powers issue is whether the War Powers Resolution requirements for Congressional approval and presidential reporting to Congress change the constitutional balance established in Articles I and II, namely that Congress is explicitly granted the sole authority to "declare war", "make Rules for the Government and Regulation of the land and naval Forces" (Article 1, Section 8), and to control the funding of those same forces, while the Executive has inherent authority as Commander in Chief. This argument does not address the other reporting requirements imposed on other executive officials and agencies by other statutes, nor does it address the provisions of Article I, Section 8 that explicitly gives Congress the authority to "make Rules for the Government and Regulation of the land and naval Forces".

The constitution specifically states that Congress is authorized "to provide and maintain a Navy" (Article 1 Section 8). The idea of "maintenance" of a Navy implies that Naval Forces would be a permanent fixture of national defense. Two types of Land Forces are described by the Constitution (Article 1 Section 8): the Militia (armed citizenry organized into local defense forces and state volunteer regiments) which Congress can "call forth" and prescribe the "organizing, arming, and disciplining [training]" of, as Congress did in the Militia acts of 1792; and the Army, which Congress can "raise and support", through regular appropriation acts limited to no more than two years. This division matches how the [[American Revolutionary War|Revolutionary War]] was fought, by the [[Continental Army]], raised and supported by the [[Continental Congress]], and local Militias and Volunteer Regiments, raised by the separate Colonies. After the war, under the Articles of Confederation, a small standing Army, the [[First American Regiment]] was raised and gradually increased in size over time by Congress before, following the Constitution's ratification, being transformed into the [[Regular Army (United States)|Regular Army]]. The availability of a standing Army, and the President of the United States being authorized as "Commander in Chief", implies his ability as a military commander to employ forces necessary to fulfill his oath to defend the constitution.

There is also an unresolved legal question, discussed by [[Byron Raymond White|Justice White]] in ''[[Immigration and Naturalization Service v. Chadha|INS v. Chadha]]'' of whether a "key provision of the War Powers Resolution", namely [https://www.law.cornell.edu/uscode/text/50/1544- 50 U.S.C. 1544(c)], constitutes an improper legislative veto. (See ''Chadha'', [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=462&invol=919 462 U.S. 919, 971].) That section 1544(c) states "such forces shall be removed by the President if the Congress so directs by concurrent resolution". Justice White argues in his dissent in ''Chadha'' that, under the ''Chadha'' ruling, 1544(c) would be a violation of the [[Presentment Clause]]. The majority in ''Chadha'' does not resolve the issue. Justice White does not address or evaluate in his dissent whether that section would fall within the inherent Congressional authority under Article I Section 8 to "make Rules for the Government and Regulation of the land and naval Forces".<ref>{{Cite web|url=https://www.launchknowledge.com/constitution/|title=The Constitution of the United States - We the People - an easy to read and use version|website=launchknowledge.com|date=September 10, 2020|language=en-us}}</ref><!--(disputed see talk)--> A post-''Chadha'' argument for the constitutionality of the concurrent resolution is that the War Powers Resolution does not delegate legislative authority to the President, and that the ''Chadha'' ruling applies only when Congress seeks to revoke a delegation of its authority.<ref>Rushkoff, Bennett C. "A Defense of the War Powers Resolution." Yale Law Journal 93, no. 7 (June 1984): 1349-50.[http://hdl.handle.net/20.500.13051/16288]</ref>

A hearing was held before the Subcommittee on Federal Spending Oversight and Emergency Management of the Committee on Homeland Security and Governmental Affairs, United States Senate, on June 6, 2018, on war powers and the effects of unauthorized military engagements on federal spending. The witnesses giving testimony before the subcommittee were law professors [[Andrew Napolitano]] and [[Jonathan Turley]], and Christopher Anders of the [[American Civil Liberties Union|ACLU]].<ref>{{cite book |last1=United States. Congress. Senate. Committee on Homeland Security and Governmental Affairs. Subcommittee on Federal Spending Oversight and Emergency Management |title=War Powers and the Effects of Unauthorized Military Engagements on Federal Spending: Hearing Before the Subcommittee on Federal Spending Oversight and Emergency Management of the Committee on Homeland Security and Governmental Affairs, United States Senate, One Hundred Fifteenth Congress, Second Session, June 6, 2018 |date=2019 |publisher=U.S. Government Publishing Office |location=Washington, DC |url=https://purl.fdlp.gov/GPO/gpo115704 |access-date=7 February 2019}}</ref>