New Online Resource: War Powers and Presidential Practice

A showdown is brewing between Congress and the White House over a measure the Senate passed recently under the War Powers Resolution to limit the president’s authority to wage war against Iran. The most likely result is a veto by President Donald Trump without the votes to override it. This rare, bipartisan action by Congress comes on the heels of last month’s strike by the United States against Iranian military commander Qassim Soleimani. Alongside renewed debates over the post-9/11 “forever wars” and U.S. support for the Saudi-led coalition in Yemen, the Soleimani strike threw into sharp relief a decades-long trend: the steady accretion of presidential war-making powers, set against waning congressional involvement in decisions of war and peace.

The War Powers Resolution (WPR), enacted in 1973 against the backdrop of the Vietnam War and over President Nixon’s veto, was meant to reset the balance of power between Congress and the president in deciding whether to wage war. In practice, however, the results have been mixed. As some in Congress have begun to consider reforms of the WPR, policymakers and the public would benefit from a clearer and more systematic understanding of how the statute has functioned to date and how executive branch practice has operated under its framework.

Today we are excited to announce the release of the War Powers Resolution Reporting Project, a product of the Reiss Center on Law and Security at NYU School of Law. (Bridgeman is the project’s lead author and researcher; Goldbrenner is the executive director of the Reiss Center.) Intended for use by policymakers, legislators, scholars, journalists and the general public, the Project is an expansive new resource that analyzes the war powers reporting practice of every president in the 45 years since the WPR was enacted. It sheds light on how presidents use U.S. armed forces abroad and relationships between the president and Congress on matters of war and peace.

A central component of the WPR are “48-hour reports,” which require the president to submit a report to Congress within two days of the president’s introducing U.S. forces into hostilities, deploying combat-equipped forces, or substantially enlarging those deployments. The War Powers Resolution Reporting Project provides a publicly accessible, searchable, open-source database analyzing the contents of all unclassified 48-hour reports from the WPR’s enactment through the end of 2019. It will be updated regularly. The 48-hour reports this Project analyzes are the primary means of ensuring transparency and oversight by our elected representatives in the use of armed forces by the president.

With a dataset of 105 reports, the Project aims to answer key questions about presidential exercise of war powers over the last 45 years: Where and why are presidents deploying U.S. armed forces abroad? How often do presidents rely solely on their own constitutional authority to do so versus invoking existing statutory authority? Has reporting fulfilled the WPR’s requirements? In what ways are the WPR’s requirements insufficient to fully inform Congress as to how the president is using military force abroad, and in what ways is the WPR succeeding in providing meaningful transparency?

The Project website offers three main components.

First, the main page of the site features a set of interactive data illustrations, which provide a visual means of exploring the data, major trends and research findings. Second, there is the database itself. Users can view the entire universe of 48-hour reports or run customized searches—filtering and layering categories of information drawn from the reports such as the president who submitted the report, location of the military activity, domestic legal authority, statutory trigger for reporting, whether the activity involves a state or non-state adversary, the type of military activity and so on. Each 48-hour report has a summary page that contains key information and excerpts and links directly to the original underlying report as filed. Third, the site provides a detailed methodology describing how the data were collected, accompanied by key findings and analysis (also available in PDF form).

The findings and analysis provide an overview of the 105 reports in the dataset across a range of dimensions, including the number filed by each president, what types of missions, the cited legal authority, and whether the report fulfills the WPR’s other reporting requirements. The analysis also identifies information that is often included in 48-hour reports even though not required by the terms of the statute, including the claimed international legal basis for the activity and whether the action was undertaken with partner forces.

The analysis also includes deeper dives into the data to examine questions about the WPR framework and presidential practice—such as the changing nature of the types of threats presidents are addressing over time and the functioning of the WPR’s “60-day clock” that requires the president to cease the introduction of U.S. forces into hostilities if not authorized by Congress at the end of that period. In one notable finding, the analysis provides a data-driven illustration of how often presidents initiate involvement of U.S. armed forces in hostilities or imminent hostilities without congressional authorization and in circumstances beyond those traditionally understood as within the core of the president’s unilateral authority. Seventeen of the 34 reports of an introduction into hostilities or imminent involvement in hostilities both rely on the President’s Article II authority alone and notify Congress of missions that arguably fall outside of the core of that authority (at least as understood in historical perspective), such as humanitarian or stabilization missions and advise and assist operations. The Project features a range of other findings and major trends—though they just scratch the surface of what can be drawn from the rich dataset.

Many thanks to our terrific researchers, Reiss Center Student Scholars and NYU Law students Erica Ma and Ariana Rowberry. We are also grateful for our partners at Objectively who designed a user-friendly and accessible platform to house these complex data and concepts.

We invite you to visit the Project website, https://warpowers.lawandsecurity.org, where you can explore the database, interactive graphics, and methodology and analysis. You can also download the entire dataset. We welcome your feedback and ideas, which you can send via email.

In the months and years ahead, we hope to build on this foundation with the aim of promoting deeper understanding of historic and contemporary practices regarding the use of U.S. armed forces around the world.

  

About the Author(s)

Tess Bridgeman

Co-Editor-in-Chief of Just Security. Former Special Assistant to the President, former Associate Counsel to the President, former Deputy Legal Adviser to the National Security Council (NSC), formerly Served at the Department of State in the Office of the Legal Adviser, in the Office of Political-Military Affairs and as Special Assistant to the Legal Adviser. Currently Senior Fellow and Visiting Scholar, Reiss Center on Law and Security at NYU School of Law. Follow her on Twitter (@bridgewriter).

Rachel Goldbrenner

Executive Director of the Reiss Center on Law and Security at NYU School of Law