Curbing the Dog of War: The War Powers Resolution

Abstract

This Article develops a theory of the constitutional allocation of the war power and applies it to the provisions of the War Powers Resolution. It examines the constitutional text and analysis of the respective powers of the President and Congres and suggests the division of all United States military activity into three categories: "peacetime deployments,"war threatening actions," and "acts of war." The Authors argue that military actions in the first category are controlled exclusively by the President, in the second controlled both by the President and by Congress through political interaction, and in the third are implemented by the President but require congressional authorization to be constitutionally valid. It argues that those uses of force requiring congressional authorization are three types of authorization -- express, implied, and presumed -- each of which in specified circumstances satisfy the constitutional requirement that Congress authorize acts of war. Finally, this constitutional theory is applied to the provisions of the War Powers Resolution. The Article demonstrates that the Resolution suffers from a number of constitutional infirmities, and that certain aspects of the Resolution legitimately enhance Congress' ability to control war.

Keywords: War Powers Resolutions