war powers act

Charles Brown CharlesB at CNCL.ci.detroit.mi.us
Fri Apr 16 11:01:24 PDT 1999

The Constitution is the fundamental or highest law of the land. Congress cannot validly override the command of the Constitution. The Constitution places the power to declare war exclusively in the Congress. Congress cannot delegate this power. If the War Powers Act purports to "get around " this Constitutional provision it is unconstitutional and invalid. The War Powers Act can only be construed as valid if it remains within the bounds of the Constitution. The Constitution requires that the Congress declare any war. The Congress has not declared war. Therefore the current war is unconstitutional even if it somehow comports with the War Powers Act.

Realistically, the Congress would probably have to oppose the war for a court (and the Supreme Court on appeal) to order an end to the war. (Yea , right).

The War Powers Act was passed as a figleaf for the unconstitutional (undeclared by Congress) war against Viet Nam, I believe.

Charles Brown

>>> Jordan Hayes <jmhayes at j-o-r-d-a-n.com> 04/16/99 01:43PM >>>

From dhenwood at panix.com Fri Apr 16 10:30:03 1999

The War Powers Resolution, at

<http://www4.law.cornell.edu/uscode/50/1541.html>, says:

"The constitutional powers of the President as

Commander-in-Chief to introduce United States Armed Forces into

hostilities, or into situations where imminent involvement in

hostilities is clearly indicated by the circumstances, are

exercised only pursuant to (1) a declaration of war, (2)

specific statutory authorization, or (3) a national emergency

created by attack upon the United States, its territories or

possessions, or its armed forces."

Sure, but it also says:


Sec. 1542. Consultation; initial and regular consultations

The President in every possible instance shall consult with

Congress before introducing United States Armed Forces into

hostilities or into situations where imminent involvement in

hostilities is clearly indicated by the circumstances, and after

every such introduction shall consult regularly with the Congress

until United States Armed Forces are no longer engaged in

hostilities or have been removed from such situations.


Which, to this non-lawyer, doesn't seem to preclude the introduction of forces without declaring war.

And further:


Sec. 1543. Reporting requirement

(a) Written report; time of submission; circumstances necessitating

submission; information reported In the absence of a

declaration of war, in any case in which United States Armed

Forces are introduced -

(1) into hostilities or into situations where imminent

involvement in hostilities is clearly indicated by the


(2) into the territory, airspace or waters of a foreign

nation, while equipped for combat, except for deployments

which relate solely to supply, replacement, repair, or

training of such forces; or

(3) in numbers which substantially enlarge United States

Armed Forces equipped for combat already located in a

foreign nation;

the President shall submit within 48 hours to the Speaker of

the House of Representatives and to the President pro tempore

of the Senate a report, in writing, setting forth -

(A) the circumstances necessitating the introduction of

United States Armed Forces;

(B) the constitutional and legislative authority under which

such introduction took place; and

(C) the estimated scope and duration of the hostilities or



Which he did.

The one dissenting vote against the resolution to support came from someone who wasn't against the action but rather was concerned about this issue -- letting the President use undeclared war as an instrument of foreign policy without the consent of Congress. But if Congress isn't concerned that he's breaking this law, which they specifically passed in order to stop such a thing from happening, I'm not sure how you can claim that he is in fact violating this law.


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