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Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq
The Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq (H.J.Res. 114) was a resolution passed in October 2002 by the United States Congress authorizing what was soon to become the 2003 invasion of Iraq under the War Powers Resolution. The authorization was sought by U.S. President George W. Bush, and it passed the House by a vote of 296-133 and the Senate by a vote of 77-23, receiving significant support from both major political parties. It was signed into law by President Bush on October 16, 2002.
The act cited several factors to justify a war:
Iraq's noncompliance with the conditions of the 1991 cease fire
Iraq's weapons of mass destruction, and programs to develop such weapons, posed a "threat to the national security of the United States and international peace and security in the Persian Gulf region"
Iraq's "brutal repression of its civilian population"
Iraq's "capability and willingness to use weapons of mass destruction against other nations and its own people"
Iraq's hostility towards the United States as demonstrated by the 1993 assassination attempt of George Bush Sr, and firing on coalition aircraft enforcing the no-fly zones following the 1991 Gulf War
Iraq's connection to terrorist groups, including Al Qaeda
Fear that Iraq would provide weapons of mass destruction to terrorists for use against the United States
The act praised President Bush's diplomatic efforts at the UN Security Council to "obtain prompt and decisive action by the Security Council to ensure that Iraq abandons its strategy of delay, evasion and noncompliance and promptly and strictly complies with all relevant Security Council resolutions." It authorized him to use military force to "defend the national security of the United States against the continuing threat posed by Iraq; and enforce all relevant United Nations Security Council Resolutions regarding Iraq." Before being permitted to use force, the President was required to determine that further diplomatic efforts alone would not satisfactorily protect the United States or ensure Iraq's compliance with UNSC resolutions.
The act was significant in that it did not require the President to obtain UN Security Council authorization. Further, even if Iraq complied with UNSC resolutions, the President was still authorized to attack in order to protect the United States. This was, in effect, approval for Bush to act unilaterally. This was viewed among American conservatives as a major impetus for the UNSC's unanimous adoption of UN Security Council Resolution 1441 a few weeks later.
The War Powers Resolution (Public Law 93-148) limits the power of the President of the United States to wage war without the approval of the Congress. The Resolution is sometimes referred to as the War Powers Act, but that is an older law intended to define limits on trade with enemies during wartime.
History
The Senate and the House of Representatives achieved the 2/3 majority required to pass this joint resolution over President Nixon's veto on November 7, 1973.
Provisions
Portions of the War Powers Resolution require the President to consult with Congress prior to the start of any hostilities as well as regularly until U.S. armed forces are no longer engaged in hostilities (Sec. 3); and to remove U.S. armed forces from hostilities if Congress has not declared war or passed a resolution authorizing the use of force within 60 days (Sec. 5(b)). Following an official request by the President to Congress, the time limit can be extended by an additional 30 days (presumably when "unavoidable military necessity" requires additional action for a safe withdrawal).
Questions about constitutionality
Every president to date has declared the War Powers Resolution to be unconstitutional, and the Supreme Court has struck down the 'legislative veto' embodied in Section 5(c) of the Resolution in the case INS v. Chadha (1983). However, in every instance since the act was passed, the President has requested and received authorization for the use of force (though not a formal declaration of war) consistent with the provisions of the resolution. The reports to Congress required of the President have been drafted to state that they are "consistent with" the War Powers Resolution rather than "pursuant to" so as to take into account the Presidential position that the Resolution is unconsitutional.
One argument for the unconstitutionality of the War Powers Resolution — Philip Bobbitt's in "War Powers: An Essay on John Hart Ely's War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath," Michigan Law Quarterly 92, no. 6 (May 1994): 1364–1400 — runs as follows: "The power to make war is not an enumerated power" and the notion that to "declare" war is to "commence" war is a "contemporary textual preconception"; the Framers of the Constitution believed that statutory authorization was the route by which the United States would be committed to war, and that 'declaration' was only meant for total wars, as shown by the history of the French Naval War (1798–1800); in general, constitutional powers are not so much separated as "linked and sequenced"; Congress's control over the armed forces is "structured" by appropriation, while the president commands; thus the act of declaring war should not be fetishized. (It should be noted, however, that Bobbitt, the nephew of Lyndon Johnson, also argues that "A democracy cannot… tolerate secret policies" because they undermine the legitimacy of governmental action.)
The intended purpose of the act was to serve as a check on the power of the President to commit the United States to military action by exercising the constitutional authority of Congress to declare war under Article One. Many constitutional scholars have questioned the usefulness of the resolution, pointing out that Congress has tended to defer to the Executive when conducting war.
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