3 times the War Powers Act got the President cross-threaded with Congress

The Framers of the Constitution intended for there to be a, let’s call it, “healthy tension” between the branches of government, especially around matters pertaining to the power to commit the nation to war. The Constitution stipulates that the President is the Commander-in-Chief of the U.S. military, but that Congress has the power of the purse over military funding as well as the authority to declare war. And like what tends to happen around pieces of legislation that endure because they’re blissfully ill-defined, the rest is subject to interpretation.

And differences in interpretation around who has the power to do what when it comes to waging war led Congress to pass the War Powers Act in 1973 after it came to light that President Nixon had expanded the already unpopular Vietnam War into neighboring Cambodia. The resolution was passed in both the House and Senate before being vetoed by Nixon. That veto was overridden and the War Powers Act became law on November 7 of that year.

The War Powers Act requires that the President notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30-day withdrawal period, without a Congressional authorization for that use of military force or a declaration of war by the United States.

But those quantitative guidelines haven’t kept the Executive and Legislative branches from tangling over the definition of “war.” Here are 3 times the President and Congress disagreed over the use of the War Powers Act:

1. Reagan sends Multinational Force to Lebanon

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Marines search the rubble following a terrorist attack on the barracks that killed 241 troops on Oct. 23, 1983. (Photo: CNN)

In 1981 President Reagan took the lead in introducing western troops — including four U.S. Marine Amphibious Units — to Lebanon as a peacekeeping force that would, among other things, allow the Palestinians to safely leave the country. But what started as a fairly benign op erupted into chaos as the months went on. The most horrific and tragic among the violent events was the bombing of the Marine Corps Barracks on October 23, 1983 that killed 241 U.S. servicemembers and 58 French paratroopers.

That bombing caused Congress to realize the American mission as one in which American forces could not succeed because their mission was poorly defined from a military point of view. (Then as now, just being present is not a viable use of military force.) Lawmakers withdrew support for the Multinational Force presence and threatened the Reagan administration with the War Powers Act to expedite getting the troops out as fast as possible, which was ironic because they had also used the War Powers Act two years earlier to allow Reagan to insert the troops for an indefinite length of time.

2. Clinton takes military action against Kosovo

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Belgrade burning after NATO air strike. (Photo: kosovo.net)

As reported by Charlie Savage in The New York Times back in 2011, “In 1999, President Clinton kept the bombing campaign in Kosovo going for more than two weeks after the 60-day deadline had passed. Even then, however, the Clinton legal team opined that its actions were consistent with the War Powers Resolution because Congress had approved a bill funding the operation, which they argued constituted implicit authorization. That theory was controversial because the War Powers Resolution specifically says that such funding does not constitute authorization.”

In 2013, The Wall Steet Journal reported that Clinton’s actions in Kosovo were challenged by a member of Congress as a violation of the War Powers Resolution in the D.C. Circuit case Campbell v. Clinton, but the court found the issue was a “non-justiciable political question.” It was also accepted that because Clinton had withdrawn from the region 12 days prior the 90-day required deadline, he had managed to comply with the act.

3. Obama conducts a campaign against Libya

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Libya MiG-23 goes down in flames after being hit by rebel fire. (Photo: aljazeera.com)

In 2011, the Obama administration was waging a proxy war against the Khaddafi regime in Libya, primarily using air power to assist the rebels. (There were rumors that American special operators were acting as forward air controllers on the ground, but they were never substantiated.) We the clock ran out on the War Powers timeframe, President Obama (along with Secretary of State Hillary Clinton) sidestepped asking Congress for permission to keep the campaign going, claiming that no authorization was needed because the leadership of the campaign had been transferred to NATO. The administration also said that U.S. involvement was “limited,” even though American aircraft were flying 75 percent of the campaign’s sorties.

Eventually, the rebels found and killed Khaddafi, which put an end to the air campaign but led to the Benghazi debacle where four Americans were killed, including the ambassador — a cautionary tale in itself, perhaps, about bypassing the War Powers Act.

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