Summary of the Responsibilities of the President and Congress Regarding Using U.S. Armed Forces - 2004

June 16, 2011

6 min read

Jihad

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The President's Role in Military Matters


"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." U.S. CONST., art. II, 2, cl. 1.
Conduct of United States foreign policy resides in the Executive Branch, and Presidents have often used armed forces as a tool of diplomacy, ranging from supporting humanitarian missions in response to natural disasters to traditional "saber rattling" to discourage certain types of conduct by nations.
The President of the United States is bound as Chief Executive of the United States and Commander in Chief of its armed forces to defend the United States from attack:
If war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. . . . [F]or war may exist without a declaration on either side.
The Prize Cases, 67 U.S. (2 Black) 635, 668 (1862) (internal quotation marks omitted).
In situations such as above, subsequent ratification by the Congress cures any defect of acting without express Congressional approval. The Prize Cases, 67 U.S. at 671.
The Court generally defers to the President regarding what actions must be taken to meet the military threat. The Prize Cases, 67 U.S. at 670.


Congress' Role in Military Matters


Congress shall have power to provide for the common defense of the United States, to declare war, to raise and support armies, to provide and maintain a Navy, and to provide for calling forth the Militia to suppress insurrections and repel invasions. U.S. CONST., art. I, 8, cl. 1, 11, 12, 13, 15.
Control of the Nation's purse strings resides in the Congress. U.S. CONST., art. I, 7, cl. 1 (revenue raising) and 8, cl. 1 (to lay and collect taxes, pay debts), cl. 2 (borrow money), cl. 3 (regulate Commerce), cl. 12 (support Armies), cl. 13 (maintain Navy).
Pursuant to the "necessary and proper" clause, Congress may pass all laws required to carry into execution its powers. U.S. CONST., art. I, 8, cl. 18.
As a general rule, since the end of the Second World War, Congress usually gives its concurrence to a particular use of United States armed forces by passing a resolution which sets specified conditions of use; it is a "discretionary matter for Congress to decide in which form . . . it will give its consent." Mitchell v. Laird, 488 F.2d 611, 615 (D.C.Cir. 1973).


The War Powers Resolution of 1973


Since both the Executive and Legislative Branches share responsibility for the Nation's armed forces, there have been frequent disagreements between the Branches concerning the use of military forces.
The conflict between the Branches came to a head during the waning days of the "undeclared" Vietnam War and led Congress in 1973 to enact The War Powers Act of 1973 ("War Powers Resolution" or "Resolution"), 50 U.S.C. 1541 et seq.
The purpose of the War Powers Resolution is to ensure that Congress and the President share in making decisions that may cause the United States to become engaged in hostilities. It limits when the President can introduce armed forces into hostilities or imminent hostilities, see 50 U.S.C. 1541(c) (forces may be introduced only pursuant to (1) a declaration of war; (2) specific statutory authorization; or (3) a national emergency created by an attack on the United States or its armed forces), and its sets forth consultation and reporting requirements, see 50 U.S.C. 1542, 1543, 1544(b).
No Administration of either Party has ever acknowledged that it was legally bound by the Resolution, although each Administration has generally comported its conduct with the Resolution's provisions. For example, every Administration reports to Congress on certain uses of the armed forces, but the report always states that it is "consistent with [not pursuant to] the War Powers Resolution."
No case brought against the Executive Branch for allegedly violating the War Powers Resolution has been successful. The courts generally see such cases as involving nonjusticiable political issues. See, e.g., Campbell v. Clinton, 203 F.3d 19 (D.C.Cir. 2000); Ange v. Bush, 752 F.Supp. 509 (D.D.C. 1990); Lowry v. Reagan, 676 F.Supp. 333 (D.D.C. 1987); Crockett v. Reagan, 720 F.2d 1355 (D.C.Cir. 1983); Sanchez-Espinoza v. Reagan, 568 F.Supp. 596 (D.D.C. 1983).


Article 5, the "Mutual Defense Clause," of the North Atlantic Treaty


The North Atlantic Treaty Organization ("NATO") was formed in 1949 to counter provocations by the Soviet Union in the post-World War II period, such as, Soviet-backed threats to the sovereignty of Norway, a Soviet-backed Communist insurgency in Greece, a Soviet-backed coup d'etat in Czechoslovakia, and the 1948 Berlin blockade.
NATO is a defensive alliance, whose member states work together in peacetime to deter war through maintaining military strength and readiness.
However, should deterrence fail, Article 5 of the North Atlantic Treaty, the "mutual defense clause," may be invoked. Article 5 reads, in pertinent part, as follows:
The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such armed attack occurs, each of them, in exercise of the right of individual or collective self-defense . . . will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.
In light of the recent terrorist attacks on United States soil, NATO, for the first time in its history, has agreed to invoke the Treaty's mutual defense clause, a clear recognition that NATO members are now prepared to view some acts of terrorism as sufficient to trigger the mutual defense provisions of Article 5.
Although invoking Article 5 does not automatically mean that our NATO allies will become involved in military action, it does obligate our allies to take "such action as [each] deems necessary, including the use of armed force." Political solidarity itself sends an important message.
Invoking Article 5 does not limit what the United States may do unilaterally to respond to the attacks on our citizens and soil - the United States retains its sovereign right under international law to defend itself.

(For the complete document listing Presidential and Congressional responsibilities, plus the War Powers Resolution of 1973 and 'Article 5', click here.)