The War Powers Myth: 60 Days of Confusion
Donald Trump’s recent remarks about unleashing “fire and fury” on North Korea have provoked much discussion about the possibility of the president of the United States ordering a military strike on the rogue state.
Given how quickly such an action could escalate into a major war with civilian casualties in the tens or hundreds of thousands, or more with the possible use of nuclear weapons, the exact scope of Congress’s authority in the decision has also come into question.
Yet many media outlets casually perpetuate a dangerous myth about the 1973 War Powers Resolution. This law, passed by Congress over the veto of Richard Nixon in the wake of the Vietnam War, codifies the constitutional principle that only the legislative branch may authorize the initiation of a war. Despite the oft-repeated myth, this law does not give the president a blank check to wage war for up to sixty days.
Authorization vs. reporting
The War Powers Resolution lays out three conditions under which the President may “introduce the Armed Forces into hostilities.” The first two are through congressional consent: Either a declaration of war, which has not been used since World War II, or the statutory authorization known as an “Authorization for the Use of Military Force,” or AUMF.
That second option is how Congress chose to authorize such recent conflicts as the 1991 Gulf War, the post-9/11 war against al-Qaeda, and the 2003 invasion of Iraq.
The third option – and the only one that allows the commander-in-chief to act immediately without congressional approval – is in response to “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”
So if we’re attacked, our military need not wait for legislative action before defending the nation.
Those three circumstances: A declaration of war, an AUMF, or an attack on the United States, are the only circumstances under which the War Powers Resolution authorizes war. That seems straightforward enough. So where did this notion of a 60-day blank check arise?
A separate provision of the War Powers Resolution lays out a system of mandatory presidential reporting to Congress. It is often said that the resolution authorizes the president to wage war for up to 60 days without congressional approval. (Sometimes this is referred to as 90 days, because of an additional 30 days provided for withdrawal if Congress denies its approval.)
The circumstances under which the president has to report to Congress, however, are deliberately not restricted to circumstances where military action has been authorized. In other words, even an illegal war must be reported, and if Congress doesn’t authorize it within 60 days, the law requires that American forces be withdrawn from the conflict.
That does not mean that the previous 60 days of warfare were authorized. On the contrary, it’s a confirmation that they were not approved.
A lapdog media plays into presidential power
Out of what can only be described as sheer ignorance, many media outlets claim this authorizes the President to start any war he wants, for any reason, so long as it doesn’t last longer than the 60- or 90-day timeline.
But this reporting turns the intent of the War Powers Resolution on its head, violating the constitutional principle underlying it.
This popular misinterpretation of the law opens the door for an illegal war that could result in mass casualties of both American servicemen and Korean civilians. If President Trump wants to launch a preemptive strike on North Korea, he must get the approval of Congress first, and not two months later.
Mainstream media should stop casually referring to a 60-day war power that the president simply does not have.
(Photo of stack of scrapped missiles, the South Korean Nike (L, back), the U.S. Hawk (front) and the North Korean Scud (C, back) displayed at a South Korean war museum in May 2005 by Chung Sung-Jun/Getty Images.)