Suing Obama Over the War Powers ActPosted: May 13, 2016
Suing Obama Over the War Powers Act
by JBS President Emeritus John F. McManus
Army Captain Nathan M. Smith is challenging U.S. involvement in the campaign against ISIS. No conscientious objector, he remains on active duty as an intelligence specialist. He contends that the Obama administration’s military action against ISIS cannot be legally justified by referring to congressional authorization given the president in the immediate aftermath of the 9/11 attacks. Captain Smith has sued President Obama claiming that the military campaign against ISIS is illegal because Congress hasn’t authorized it as required by the War Powers Act of 1973.
The Act requires congressional approval of any presidential assignment of troops to a combat situation that lasts more than 60 days. The president can respond with military force where needed but if the action exceeds 60 days, he must seek congressional authorization to continue it. If Congress refuses to grant its authorization, the troops must be brought home.
This four-decades-old Act sought to control President Nixon’s continuing use of the military during the Vietnam War. Claiming that the proposed law watered down his executive power, Nixon vetoed it. But Congress overrode his veto and the Act became law. Henceforth, according to the War Powers Act, there must be congressional authorization if a president sends troops into any battle and that battle continues beyond 60 days.
Anyone who cares much for the U.S. Constitution knows that the War Powers Act ignores the Constitution’s requirement that Congress declare any war our forces are sent into. There has been no amendment cancelling Article I, Section 8, Clause 11 that clearly states, “Congress shall have power … To declare war.” If military action by U.S. forces is needed to combat ISIS (or any other enemy), the only constitutional way to do so is by referencing this particular portion of the Constitution.
Most of the horrendous casualties suffered during the Vietnam War had occurred during several years prior to 1973. Even at best therefore, the War Powers Act amounted to closing the barn door after the horse had escaped. It amounted to a meaningless and self-serving gesture by Congress intending to show the war-weary American public its toughness. But authorization for deploying forces to Southeast Asia had come from SEATO, a United Nations subsidiary. A succession of Presidents (Kennedy, Johnson, and Nixon) ignored the Constitution’s sole grant of war-making power to Congress and the members of Congress sought approval from the American people for what was meaningless bravado. In reality, the War Powers Act was a congressional face-saving measure that accomplished nothing of substance.
Wars declared by Congress, such as WWI and WWII, end in victory. Wars authorized by the UN and its agencies (e.g. Korea, Vietnam, Iraq, and Afghanistan) aren’t won. Even a war sanctioned by Congress via the War Powers Act would be violating the Constitution’s requirement for a declaration of war. But that’s not the only problem brought on by our leaders refusing to honor their oath to the Constitution. They have steadily and virtually silently cooperated in a piece-by-piece transfer of U.S. sovereignty to the United Nations.
Captain Smith should be made aware that his suing the president for not using the War Powers Act is really a meaningless gesture. A suit aimed at Mr. Obama and at the Congress for violating the solemn oath to the Constitution – especially including Article I, Section 8, Clause 11 – makes a great deal more sense.
Mr. McManus served in the U.S. Marine Corps in the late 1950s and joined the staff of The John Birch Society in August 1966. He has served various roles for the organization including Field Coordinator, Director of Public Affairs, and President. Mr. McManus has appeared on hundreds of radio and television programs and is also author of a number of educational DVDs and books. Now President Emeritus, he continues his involvement with the Society through public speaking and writing for this blog, the JBS Bulletin, and The New American.