War Powers Litigation Initiated by Members of Congress Since the Enactment of the War Powers Resolution

Michael John Garcia
Legislative Attorney

Article I, § 8, of the Constitution confers on Congress the power to “declare War.” Modern Presidents, however, have contended that, notwithstanding this clause, they do not need congressional authorization to use force. Partly in response to that contention, and because of widespread concern that Congress had allowed its war power to atrophy in the Korean and Vietnam conflicts, Congress in 1973 enacted the War Powers Resolution (WPR, P.L. 93-148). Among other things, the WPR generally requires the President to report to Congress within 48 hours when, absent a declaration of war, U.S. armed forces are introduced into “hostilities or ... situations where imminent involvement in hostilities is clearly indicated by the circumstances.” After a report is submitted or required to be submitted, the WPR requires that the forces be withdrawn within 60 days (90 days in specified circumstances) unless Congress declares war or otherwise authorizes their continued involvement.

Nonetheless, subsequent Presidents have continued to maintain that they have sufficient authority independent of Congress to initiate the use of military force; and several Presidents have viewed aspects of the WPR as unconstitutionally infringing upon their Commander-in-Chief authority. Congress has on four occasions enacted authorizations specifically waiving the 60-90 day limitation on the use of force otherwise imposed by the WPR. But on eight occasions Members of Congress have filed suit to force various Presidents to comply with WPR requirements or otherwise to recognize Congress’s war powers under the Constitution. In six of the seven cases where final rulings were issued, the courts have found reasons not to render a decision on the merits of the plaintiffs’ claims. In the seventh case, involving the President’s authority to pursue military action against Iraq following congressional authorization, the court ruled on the merits of the plaintiffs’ claim concerning the constitutionality of this authorization, but dismissed all other claims on jurisdictional grounds. The courts have variously found the political question doctrine, the equitable/remedial discretion doctrine, the issue of ripeness, and the question of congressional standing to preclude judicial resolution of the matter. Although the courts have not ruled out the possibility that a conflict over the use of force between Congress and the President could require a judicial resolution, they have thus far deemed the matter to be one for the political branches to resolve.

On June 15, 2011, ten Members of Congress brought suit in federal court seeking a declaratory judgment that ongoing U.S. military operations against Libya violated Congress’s constitutional power to declare war, and also requested a judicial order enjoining further operations against Libya absent a declaration of war.

This report summarizes the seven cases initiated by Members of Congress in which final rulings were reached, which concerned U.S. military activities in El Salvador, Nicaragua, and Grenada; military action taken the during Persian Gulf conflict between Iraq and Iran; U.S. activities in response to Iraq’s invasion of Kuwait (prior to the congressional authorization); and U.S. participation in NATO’s action in Kosovo and Yugoslavia. This report also briefly discusses the current legal challenge to enjoin further military action against Libya, and discusses more generally the debate surrounding the WPR’s application to these military operations.


Date of Report: June 22, 2011
Number of Pages: 21
Order Number: RL30352
Price: $29.95

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