President Trump and Vice President Vance declared this week that all presidents have considered the War Powers Resolution to be unconstitutional. The comments were in response to a Senate vote to take up a measure that would limit further military action in and against Venezuela.
In the context of the current debate, their claim is wrong — although there is a misleading way in which it is true, though irrelevant to the issues at hand. Here is a closer look.
What is the War Powers Resolution?
It is a set of statutes Congress enacted in 1974 — and tweaked in 1983 — in an effort to reclaim its constitutionally intended role of deciding whether the United States would go to war. That role had eroded during the Cold War as presidents used the standing armies left in place after World War II to unilaterally dispatch troops into combat.
One part requires presidents “in every possible instance” to consult with Congress before deploying troops into hostile situations. Another declares a narrow view of the circumstances in which presidents may do so without authorization — essentially, when the country is under attack.
If presidents make unilateral deployments, one part requires notification of Congress, and another says they must withdraw troops after 60 days if lawmakers have not since authorized the operations. Other parts also create ways for Congress to swiftly vote to terminate unauthorized hostilities right away.
How is the Senate using it?
The Senate is considering invoking a mechanism that can force presidents to withdraw troops. It voted 52 to 47 to bring up for debate a joint resolution, sponsored by Senator Tim Kaine, Democrat of Virginia, that would bar further use of the U.S. military for “hostilities within or against Venezuela.” Five Republicans joined Democrats in moving the measure forward.
The Republican-controlled House in December rejected similar measures, but that was before Mr. Trump bombed Venezuelan territory and launched a military incursion that seized the country’s president, Nicolás Maduro. About 80 people were killed. Mr. Trump said U.S. involvement in Venezuela may last for years.
What did Trump and Vance claim?
Mr. Trump railed on social media on Thursday at the five Republican senators who voted to take up the measure. He wrote that, “despite their ‘stupidity,’ the War Powers Act is Unconstitutional, totally violating Article II of the Constitution, as all Presidents, and their Departments of Justice, have determined before me.”
In a news conference, Mr. Vance, a Yale Law School graduate, declared that, “as the president I believe himself has already said, every president, Democrat or Republican, believes the War Powers Act is fundamentally a fake and unconstitutional law.”
Is that true?
No, at least when applied to the part the Senate measure is invoking. But technically, yes — if one misleadingly portrays the War Powers Resolution as a singular thing.
This is a semantics issue. The War Powers Resolution was a single piece of legislation in 1974. But it contained many different parts, each creating a separate section of statutory code — and in 1983, Congress added another section.
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In other words, the War Powers Resolution is not so much one law but a set of distinct provisions of law that, while thematically related, exist largely independently and are analyzed separately.
That matters because while some parts are widely seen as unconstitutional, other parts are widely accepted as valid — and still other parts are subject to dispute.
Various executive branch lawyers have weighed in over the years in congressional testimony, White House memos and presidential signing statements. The two most authoritative executive branch takes are opinions by the Justice Department’s Office of Legal Counsel — one from 1980 and one from 1993.
What is there agreement about?
Both memos denigrated as too narrow the limited description of circumstances in which presidents may lawfully deploy forces into hostile situations without congressional authorization. Both portrayed that as a mere policy opinion by Congress, but made clear that, if interpreted as a statutory command, the executive branch would see it as unconstitutional.
Every subsequent president has ordered military strikes, commando raids and other deployments that exceeded this narrow view. In that sense, what Mr. Trump and Mr. Vance said is true — except that is not the part now at issue.
Both memos said that the parts about generally consulting Congress and requiring reports were constitutional on their face, while suggesting there might be particular scenarios in which a president could keep information secret from Congress for security reasons.
The 60-day clock provision has its own complicated history. Generally, Republican administrations have been more hostile to it than Democratic ones, but, to date, no president has conceded that it applied to a situation and violated it anyway based on a theory that it was unconstitutional.
What about the mechanism at issue?
Congress’s attempt to give itself a means to force presidents to end unauthorized operations is complicated. Essentially, everyone now agrees that the first version was unconstitutional, but Congress added a different version in 1983 to address that problem.
The 1974 legislation said Congress could terminate a military operation through a concurrent resolution — one the president does not sign or veto. But in 1983, the Supreme Court ruled that, for a resolution to have legal effect, it must be presented to the president for signature or veto, just like a bill.
Later that year, Congress enacted legislation, which President Ronald Reagan signed without complaint, saying that it could terminate hostilities using a joint resolution — the kind presidents can veto.
Senator Kaine’s measure invokes the 1983 statute.
What have executive branch lawyers said about that?
The 1993 Justice Department memo acknowledged that using a joint resolution to force a president to withdraw troops — presumably by first overriding an inevitable presidential veto — would be “a legitimate exercise of Congress’s war powers.”
“Congress’ power to declare war necessarily includes the power ultimately to determine whether the nation is at war or in peace,” it said. “A joint resolution ordering that troops be withdrawn from certain hostilities is in essence a declaration that the nation will not be at war.”
That view is not universal. In 1975, a State Department lawyer in the Ford administration testified that he thought for Congress even to use a joint resolution to force a troop withdrawal would be unconstitutional.
Regardless, the sweeping claim from Mr. Trump, reinforced by Mr. Vance, that every president — and every Justice Department of both parties — has thought the War Powers Resolution unconstitutional was false in the context of the Venezuela measure.
Charlie Savage writes about national security and legal policy for The Times.
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