Document Type

Article

Comments

The Constitutionality of the War Powers Resolution, 70 Virginia Law Review 101 (1984)

Abstract

Anyone wishing to argue that the War Powers Resolution of 1973 is unconstitutional must be prepared to explain the purpose of article I, section 8, clause 11, of the Constitution. That provision expressly grants to Congress the power "To declare War." If the President of the United States is free to fight a war whether or not one has been declared, then this apparently unambiguous constitutional provision is devoid of significance.

Opponents of the War Powers Resolution have traditionally claimed that clause 11 confers upon Congress only a narrow piece of war power. Defenders of the Resolution have argued in contrast that the Resolution constitutes an exercise of congressional authority under the clause. This last contention pokes at the truth without quite striking it. The War Powers Resolution is not constitutional as an exercise of the war power. It is constitutional because it defines the war power. The War Powers Resolution is nothing more or less than a congressional definition of the word "war" in article I. A definition of this kind coupled with a reasonable enforcement mechanism is well within the power of Congress under a proper understanding of the constitutional system of checks and balances. The definition does not intrude on any presidential prerogative. The mechanisms chosen by Congress to enforce the provisions of the Resolution were reasonable in 1973 and, although matters have been complicated by the United States Supreme Court's decision late last Term in Immigration and Naturalization Service v. Chadha, those mechanisms remain reasonable today.

Date of Authorship for this Version

1984

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