The War Powers Resolution Explained, and Why Presidents Resist It

Imagine a law that every president of both parties has, in one way or another, treated like a speed limit on a country road: advisory, widely ignored, and best handled by looking at the sky when the officer pulls up alongside. Now imagine that law was passed over a veto by a Congress furious at the man in the White House, and that it has been the subject of a stubborn constitutional argument for more than fifty years.

That's the War Powers Resolution of 1973. It is one of the most cited and least obeyed statutes in Washington. You will hear it invoked every time American forces go into harm's way, usually by people who have not read it. So let's read it. It is short, and you can find the text in Title 50 of the United States Code, sections 1541 through 1548, on Congress.gov or the Cornell Legal Information Institute.

Where it came from

Start with the mood. By 1973 the United States had spent most of a decade in Vietnam. The Gulf of Tonkin Resolution of August 1964 had given President Johnson broad authority, and that authority had been stretched across years of escalation. Congress had also been stung by revelations about the secret bombing of Cambodia. Meanwhile the Watergate scandal was consuming the Nixon presidency; the "Saturday Night Massacre" occurred in October of that year.

Congress decided it wanted its war power back, or at least a firmer grip on it. The result was a joint resolution that Nixon vetoed on October 24, 1973. Congress overrode the veto on November 7, 1973, and the resolution became law. Republicans as well as Democrats voted to override. That's worth remembering when you hear people talk about it as a partisan stunt.

Nixon's veto message argued that the measure was unconstitutional, that it would take away authority the Constitution gives the president, and that it would undermine the nation's ability to act in a crisis. Every president since has echoed some version of that, no matter which party he came from.

What the law says

Here are the operative pieces in plain English.

The statement of purpose (Section 2). Congress says the framers intended the collective judgment of both branches to apply to the introduction of American forces into hostilities. It says the president's power as commander in chief to introduce forces into hostilities may be exercised only under a declaration of war, specific statutory authorization, or a national emergency created by an attack on the United States, its territories or possessions, or its armed forces.

Consultation (Section 3). The president "in every possible instance" shall consult with Congress before introducing forces into hostilities or situations where hostilities are clearly imminent, and regularly afterward. "In every possible instance" is lawyer's language that does a lot of work, as you can imagine.

The 48-hour report (Section 4). Within forty-eight hours of sending forces into hostilities, into foreign territory while equipped for combat (with some exceptions), or in numbers that substantially enlarge forces already there, the president must send a written report to the Speaker of the House and the president pro tempore of the Senate. The report must give the circumstances, the constitutional and legislative authority, and the estimated scope and duration.

The 60-day clock (Section 5(b)). Within sixty calendar days after the report is submitted, or required to be submitted, the president must terminate the use of forces unless Congress has declared war, enacted a specific authorization, extended the period by law, or is physically unable to meet because of an armed attack on the United States. The president can get thirty more days if he certifies in writing that "unavoidable military necessity" requires the continued use of forces in the course of bringing them out safely.

The concurrent resolution (Section 5(c)). Congress may direct the president to remove forces from hostilities at any time by concurrent resolution, which is a measure that passes both houses but is not presented to the president.

No back-door authorization (Section 8). The law says authority to use forces is not to be inferred from an appropriations act or from a treaty, unless the provision specifically says so. That sentence matters more than most people realize, and I'll come back to it.

A worked example of the clock

The clock confuses people, so let me show the arithmetic with a hypothetical. This is an invented case to show the math, not a real event.

Say the president sends combat forces into hostilities on March 1.

• Forty-eight hours later, on March 3, the report is due.
• The sixty days run from the date the report is submitted or required to be submitted, so they start on March 3. March 3 plus sixty days is May 2. (March has 31 days, so 28 days takes you to March 31, then 30 more to April 30, which makes 58, and two more days gets you to May 2.)
• If the president certifies unavoidable military necessity for a safe withdrawal, he gets thirty more days, to June 1. (May 2 plus 30 days is June 1.)

So the maximum under the text, absent a congressional authorization, is about ninety-two days from the date of introduction. After that, the statute says forces must come home. Mark that phrase, "the statute says," because the story of the law is the distance between what the statute says and what has happened.

Why it has never worked as written

There are three reasons, and they build on each other.

One: the legislative veto died in 1983. The concurrent-resolution mechanism in Section 5(c) was the law's sharpest tool. Congress could tell the president to bring the troops home without presenting the measure to him. Then, in INS v. Chadha (1983), the Supreme Court held that a one-house legislative veto over executive action violated the Constitution, because lawmaking requires passage by both houses and presentment to the president under Article I, Section 7. The reasoning applies to a two-house concurrent resolution as well, and most observers concluded that Section 5(c) was dead on arrival. Congress's alternative is a joint resolution, which goes to the president, who can veto it, which means opponents of the president's action need two-thirds of both chambers. That is the very obstacle the law was designed to avoid.

Two: presidents of both parties have refused to concede the clock. Presidents have filed reports "consistent with" the law rather than "pursuant to" it, a distinction lawyers adore and ordinary people find baffling. The idea is to avoid conceding that the 60-day period began to run. President Ford did this after the Mayaguez rescue in 1975. The practice has continued across administrations ever since.

Three: the courts stay out. Members of Congress have occasionally sued, and the courts have usually dismissed on grounds of standing, ripeness, or political question. In Campbell v. Clinton (D.C. Circuit, 2000), dozens of House members challenged the Kosovo air campaign, and the court of appeals ruled against them on standing. When judges won't referee, the two branches are left to fight it out politically.

The test cases

Two famous cases show how the machinery works in practice.

Kosovo, 1999. President Clinton committed American forces to a NATO air campaign against Yugoslavia that began in March 1999 and ran for 78 days, ending in June. Members voted on several measures during the campaign, and no measure authorizing it passed both houses. The sixty days passed. The administration argued, in effect, that the campaign did not require withdrawal, and Congress did not force the issue. A Democratic president, a Republican Congress, and the law went unenforced.

Libya, 2011. President Obama joined a NATO operation in Libya in March 2011. When the sixty-day mark came in May, the administration argued to Congress that US forces were not engaged in "hostilities" in the sense of the statute, because their role was limited and the risk of casualties was low. Critics in both parties thought that reading was a stretch. Congress authorized nothing, and the operation went on.

These are bipartisan test cases, and I mean that as the lesson. A Republican president and a Democratic president, in different decades, both read the law in the way that gave them the most room. When you hear someone suggest the problem is one party's president, remember that the pattern shows up on both sides of the aisle. How Republican presidents asked Congress for war powers from Formosa to Iraq covers the Republican side of that record, including cases where presidents sought congressional backing.

The best defense of the presidents

Now the steelman, because the presidents have a real argument, and it is not stupid.

1. The Constitution makes the president commander in chief, and Article II vests him with "the executive Power." A statute cannot take away a power the Constitution grants.
2. Modern threats move fast. A rule that requires a congressional vote within sixty days could force a president to withdraw from an operation that is going well, or to continue one that is going badly, for the sake of a calendar.
3. Many presidents have operated on the view that limited uses of force, such as protecting Americans abroad or conducting a rescue, fall within the commander in chief's authority without a vote.

There is something to each of those. Hamilton wrote in Federalist 69 that the president's role as commander in chief would amount to the supreme command and direction of the military forces, a narrower authority than the British king's, which included the power to declare war. The founders gave the declaring to Congress and the directing to the president. I explore that division in Who Declares War? What the Founders Meant and Where We Drifted.

The answer to the presidents is that "commander in chief" describes who runs a war, not who starts it. A president is not free to initiate a sustained campaign and then label it a limited operation whenever a lawyer in the Justice Department says so. That is how a clause about command turns into a clause about everything.

What Congress can really do

If you take one thing away from this post, make it this. The most effective congressional tool in the history of war powers is not the Resolution. It is the purse.

Article I gives Congress the power to raise and support armies and to control appropriations. A president can send forces, but forces need money, and Congress decides whether the money keeps flowing. A few examples:

• Vietnam, 1973. The Case-Church amendment, enacted in the summer of 1973, cut off funds for combat activities in Southeast Asia after August 15, 1973. Nixon signed it as part of a larger bill. The law that ended the bombing of Cambodia was a funding cutoff, and it came before the War Powers Resolution.
• Nicaragua, 1980s. The Boland amendments restricted funds for the Contras. The Iran-Contra scandal was about officials who tried to get around the limits, which tells you the limits mattered.
• Somalia, 1993 to 1994. After the October 1993 firefight in Mogadishu, Congress set a deadline in an appropriations measure of March 31, 1994 for American forces to leave. The administration had already announced a withdrawal, so the two moved together.

A funding cutoff has an advantage over the Resolution: it needs a majority in each house, and it is a mechanism that works regardless of what a lawyer thinks of the Resolution. It also has costs. It is blunt, and cutting off money can endanger the troops already in the field, which is why members hesitate to use it. Section 8 of the Resolution also reminds us that appropriations alone do not count as authorization, so Congress cannot lazily fund a war and call that approval.

There is also the president's veto. In April 2019, Congress passed a joint resolution under the War Powers Resolution's expedited procedures to end American support for a Saudi-led campaign in Yemen, and President Trump vetoed it. The override failed. That is the structure at work: Congress can pass a resolution, but without two-thirds of each chamber it cannot beat a veto. If you want to constrain a president's use of force with a resolution, you need the supermajority, or a president willing to sign. For more on override votes, see Five vetoes Congress overrode and what each showed about presidential power.

What to do with this

A few practical points for a citizen who wants to argue about the next military action.

1. Ask for the report. The president must send one within 48 hours. Congress.gov and the White House website often post them.
2. Ask what authority the president claims. A statute? An existing authorization? His own constitutional power? The answer tells you which legal theory he is using.
3. Count the days. If the sixty-day mark arrives, ask what Congress plans to do.
4. Ask your senators and your House member whether they will vote on an authorization. The point of the Resolution was to force the question.

For the deeper constitutional picture, Who Decides on War? The Constitution, the 1973 Law and the Gray Zone and Justice Jackson's Three-Box Test for Presidential Power, Put to Work are worth your time.

The bottom line

• The War Powers Resolution is a real law with a 48-hour report and a 60-day clock, and presidents of both parties have read it narrowly and called parts of it unconstitutional.
• Chadha removed the law's sharpest tool, and the courts have refused to referee, so enforcement is political.
• The strongest congressional power is the purse. Case-Church in 1973 and the Somalia deadline in 1994 show it works.
• Don't accept "the law requires X" from either side without checking the text. Read Title 50, sections 1541 to 1548.
• Ask your members of Congress to vote on authorization when forces are committed, and hold them to it whichever party holds the White House.