Good Governance Paper No. 14: War Powers Reform

[Editors’ note: This essay is one in a series—the Good Governance Papers—organized by Just Security. In these essays, leading experts explore actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For more information, you can read the Introduction by the series’ editors.]

There is a growing consensus across the political spectrum, among practitioners, in the advocacy community, and in academia that the balance of war powers between the president and the Congress must be recalibrated. Over many decades, the President has accreted ever-more authority to use U.S. armed forces abroad without prior congressional authorization, in part based on expansive interpretations of Article II power put forward by the Department of Justice’s Office of Legal Counsel (OLC). At the same time, the Executive branch has interpreted existing force authorizations ever-more broadly the longer they stay on the books – for example, reading the 2001 Authorization for Use of Military Force to cover armed groups that didn’t even exist at the time the authorization was passed.

It has also become clearer through successive presidential administrations that the landmark statute passed to restore some measure of balance among the political branches in matters of war and peace following the Vietnam War – the War Powers Resolution of 1973 (WPR) – is at minimum not functioning as intended; according to some, it is fundamentally broken.

Unless Congress has previously authorized an operation, the WPR requires the President to consult Congress before introducing armed forces into “hostilities” or “situations where imminent involvement in hostilities is clearly indicated by the circumstances,” and to notify Congress within 48 hours after having done so (known colloquially as a “48-hour report”). Such 48-hour reports are also required when forces are introduced into foreign territory (including the airspace or waters of a foreign country) “while equipped for combat,” or “in numbers which substantially enlarge” existing combat-equipped deployments.

This reporting function introduces a measure of much-needed transparency, but the real bite of the WPR was intended to be its termination provision. That provision provides both that the President must cease the use of armed forces if Congress has not authorized their continued engagement within 60 days (extendable to 90 days in certain circumstances) following a 48-hour report and that Congress can cut short the engagement even sooner if it so directs by a concurrent resolution – i.e., a resolution that both the Senate and the House of Representatives have passed, but that the President has not signed.

But as we have written previously, “the years have not been kind to the War Powers Resolution, which has suffered such significant blows from all three branches of the government that it is challenging to rank which was the most damaging.” The Supreme Court’s INS v. Chadha (1983) decision, which deemed the so-called “legislative veto” unconstitutional, is widely viewed as rendering inoperable the concurrent resolution as a mechanism for Congress to require the withdrawal of U.S. forces; if it wants to bring troops home Congress must either secure the President’s signature or have sufficient votes to overcome a veto. The Executive Branch has also done its part: Presidents from Ford onward have interpreted “hostilities” more and more narrowly, thus reducing the scope of the WPR’s notification and termination provisions. Congress’s sins have been largely ones of omission: It often acquiesces in aggressive Executive branch interpretations and practice under the Resolution.

Reforming the War Powers Resolution is no easy task, but we believe it is achievable. And while a soup-to-nuts overhaul of the WPR is a desirable medium-term goal, our aim here is to put forward four concrete revisions that should form part of any reform proposal and could alone go a long way towards improving the status quo.

Key Problems and Proposed Solutions

1. The Definition of “Hostilities”

The problem: The rift between the congressional and executive branch interpretations of the term “hostilities” – arguably the most important term in the WPR because it triggers both the 60-day clock and, in turn, the termination requirement – has widened over the years to the point of mutual unrecognition.

In theory, the term’s meaning (which is not defined on the face of the statute) should track the statute’s legislative history. The House Foreign Affairs Committee’s report on the WPR from the time of its passage describes the term as encompassing a “state of confrontation in which no shots have been fired” but there is “a clear and present danger of armed conflict.” In short, the WPR’s drafters wanted to motivate the Executive Branch to seek authorization from Congress in risky situations short of a shooting war. But that is not how any administration from the mid-70s onward has interpreted the term.

Quite to the contrary, the Executive branch has argued since 1975 that the term hostilities is “definable in a meaningful way only in the context of an actual set of facts” – a “we know it when we see it” mode of statutory interpretation – and that it should only be understood to apply to situations when U.S. forces “are actively engaged in exchanges of fire with opposing units of hostile forces.” Presidents of both parties have argued that situations shy of “full military engagements,” in which “exposure” of U.S. forces is limited, or in which military engagements are “intermittent,” do not trigger the WPR’s 60-day termination rule. In short, the Executive Branch has afforded itself tremendous flexibility to skirt the automatic termination provisions of the statute.

Proposed definition: In order to ensure Presidents are reporting introductions of U.S. armed forces into potentially significant situations, and terminating those introductions in a greater range of situations more in keeping with Congress’ initial intent, Congress should amend the WPR to include the following definition of “hostilities”:

The term ‘hostilities’ includes any situation involving any use of lethal or potentially lethal force, by or against United States forces, irrespective of the domain, including purposeful destruction of property rising to the level of a use of force; regardless of whether such force is deployed remotely; the scope of the mission of such forces or the extent to which the mission exposes such forces to the risk of casualty or the risk of escalation; or the intermittency, intensity, or severity thereof.

This would encompass uses of force in the kinetic or cyber domains, include force deployed via remote weapons systems (such as UAVs), and bring intermittent, one-sided, and low-intensity engagements within the definition of “hostilities.” The definition would also encompass certain special forces operations undertaken pursuant to title 10 authorities (i.e., those involving lethal or potentially lethal force) for which effective congressional oversight is sorely lacking and existing reporting requirements are by themselves an insufficient check. This became clear following the death of four U.S. special forces soldiers on an ostensibly “train, advise and assist” mission in Niger in 2017 (the operation was undertaken pursuant to section 127e, a fiscal authority that allows the Department of Defense to expend funds to partner with foreign forces “engaged in supporting or facilitating authorized ongoing military operations” by U.S. special operators to “combat terrorism”).

2. The Sixty-Day Clock

The problem: A second problem that ought to be addressed is a more practical one. The 60-day (or under some circumstances 90-day) window that the WPR effectively creates for the Executive Branch to operate without congressional authorization is simply too long. The “Purpose and Policy” section of the WPR contemplates that the Executive Branch must seek authorization except in cases where Congress has either already given it (in the form of a Declaration of war or authorizing statute) or where there is “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” In practice, though, that is not how it has worked.

The Executive Branch has not reserved the power of unilateral engagement for situations involving an attack on the United States or U.S. armed forces, or even more broadly for serious threats to U.S. persons and property. Instead, the 60/90 day clock has been treated by both of the political branches as more or less free time during which the president is permitted to launch operations on the authority of his Art. II powers alone, so long as they (1) serve a “national interest” (which has been defined expansively by OLC to include everything from “responding to humanitarian catastrophes” to “assistance to allies” or “support for the United Nations”) and (2) fall short of war “in the constitutional sense” based on examining their “anticipated nature, scope, and duration” (which has been defined narrowly by the same office to mean “prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period.”). This can tempt executive branch policymakers into thinking that they have enough time – two, possibly three months – to start and finish a small conflict or other operations involving lethal force without getting Congress involved.

In both the Kosovo and Libya interventions (1999 and 2011 respectively), which were planned as essentially humanitarian in nature, this calculation proved wrong. Neither campaign concluded within 60 or even 90 days. But the proverbial bell is very hard to unring once forces are introduced. Having launched the U.S. military, the Executive Branch was not about to pull it back before it had achieved its objectives (which could arguably have left civilians, and allies, in the lurch), and Congress was not about to force it to do so. Instead, the Executive Branch found ways to interpret the WPR creatively so that the 60/90-day clock did not apply to those operations and thereby contributed to the ongoing weakening of the statutory framework.

For operations that do arguably fall within the core of the president’s unilateral authority to use force abroad without prior congressional authorization – such as protecting American citizens and property via a military-facilitated evacuation or rescue or the like – the president would still be able to act quickly. But for operations that fall outside of those core interests, Congress should have a say within 20 days.

Proposed reform: The solution is straightforward: Remove the temptation for the Executive Branch to seek a quick, unauthorized win by shortening the time on the clock from sixty to twenty days in sections five, six, and seven of the WPR.

3. Quality of Information and Transparency: More and Better Reporting

The problem: The reporting provisions of the WPR, while in some respects the most well-functioning component of the WPR framework insofar as presidents do generally follow them, are woefully in need of reform. As documented in the NYU RCLS War Powers Reporting Project, most presidents comply with the 48-hour reporting requirements most of the time. However, 48-hour reports do not state which of the statute’s three reporting requirements triggered the notification, leaving Congress to guess in many instances whether the President believes forces have been introduced into hostilities (or a situation in which imminent involvement is likely) and therefore whether the 60-day clock is “ticking.”

Moreover, the information that is statutorily required to be included in those reports – the “circumstances necessitating the introduction,” the “authority under which such introduction took place,” and “the estimated scope and duration of the hostilities or involvement” – is often provided in vague, even boiler-plate language. Following a 48-hour report, the current WPR allows the President to go silent for up to six months, because section 4(c) of the WPR only requires periodic reporting of the status of hostilities semi-annually. Finally, Congress in the original WPR did not require reports to be unclassified (in whole or in part), enabling the antics we saw when the Trump administration sent a classified 48-hour report to Congress following its unauthorized strike on Iranian General Qassem Soleimani in Iraq.

In short, there are too many ways for the Executive Branch to avoid providing the information that Congress needs to engage in meaningful oversight, and that the public needs in order to hold elected officials to account.

Proposed reporting provision:  To ensure 48-reporting is more than a box-ticking exercise, Congress should require that the President provide an unclassified report to Congress that, in addition to the already-required information, identifies:

  • which prong of the notification requirement the report is provided under (i.e., hostilities, combat-equipped introduction, a substantial enlargement, or some combination of these);
  • the specific country (or countries) and/or organized armed group(s) against which the use of force is occurring or is expected to occur based on the circumstances;
  • a description of the objectives that would indicate the mission is complete;
  • the estimated risk to U.S. Forces, other U.S. persons or property involved in the operations, and to civilians; and
  • the domestic and international legal basis for the operation.

To the extent that certain information must be provided in classified form, this should be subject to the most stringent limitations, and the President should be required to certify to the necessity of the classification.

In addition, Congress should require the Executive Branch to provide information following a 48-hour report triggered by the “hostilities” prong. Congress should amend the WPR to require, at least every 7 days or until such time as the President certifies that the hostilities or situation where there is a serious risk thereof are no longer ongoing, a report describing:

  • any material change in information from the original 48-hour report;
  • the estimated cost of any operations to date;
  • any other information as may be required to fully inform Congress.

4. A Funds Cut-Off to Bring Back Teeth in the Termination Requirement

Not only did the Supreme Court’s Chadha decision disable the concurrent resolution as a termination mechanism, but the courts have over the years generally shied away from war powers cases. While making the resolution more enforceable is no small task, one step in the right direction might be to link non-compliance to what is perhaps Congress’s pre-eminent enumerated power under Article I of the constitution – the power of the purse. A provision that automatically terminates funding for Executive Branch military operations that have not been timely notified to, or authorized by, Congress could help change the dysfunctional dynamic between the two branches when it comes to matters of war and peace. This creates an automatic remedy for non-compliance (defunding) that the current statute lacks, and if funds are expended in violation of the statute, the Anti-Deficiency Act (31 U.S.C. 1341) – a powerful disincentive for executive branch officials that makes it illegal to “make or authorize an expenditure or obligation exceeding an amount” appropriated or funded for the purpose – kicks in to provide an additional backstop. These features should make it more difficult to skirt the WPR’s requirements.

Proposed termination of funding: Congress should amend the WPR to include an automatic funds cut-off along the following lines:

Notwithstanding any other provision of law, no funds appropriated or otherwise made available under any law may be obligated or expended for any activity by United States Forces that is subject to the section 4(a) 48-hour reporting requirement herein [the hostilities prong], and for which prior congressional authorization has not been obtained, beyond 20 days from the date the 48-hr report was provided or should have been provided, whichever is earlier.

An alternative formulation, proposed by Jack Goldsmith and Bob Bauer in their recent book, provides another option:

“No funds made available under any provision of law may be obligated or expended for any use of force abroad inconsistent with the provisions of this act.”

Conclusion

These simple changes to the existing WPR framework would require congressional authorization in a broader range of situations where U.S. armed forces could become involved in an armed confrontation; reduce the temptation for the President to launch unauthorized operations on the assumption that they can be wrapped up within the relevant statutory deadline; significantly increase the quantity and quality of information available to Congress on matters of war and peace; and provide an effective mechanism for Congress to rein in unauthorized presidential action.

To be sure, a broader overhaul of the War Powers Resolution is needed, and Congress should begin that process without delay. But in the meantime, it should try to coalesce around these common-sense steps as essential components of any reform and enact them on their own (in a must-pass vehicle like the annual defense authorization bill) if deeper reforms get mired down. 

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).

Stephen Pomper

Stephen Pomper is U.S. Program Director for International Crisis Group, Served in the Obama Administration as the National Security Council's Senior Director for Multilateral Affairs and Human Rights. Currently Non-Resident Senior Fellow, Reiss Center on Law and Security at NYU School of Law. You can follow him on Twitter (@StephenPomper).