On Sept. 15, Congress declared “war” on terrorism. Was the declaration a formal war declaration, and what powers does it give the president?
The Use of Force Resolution is not a formal declaration of war. The joint resolution, adopted unanimously in the Senate and 420-1 in the House, authorized President Bush to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” as well as against anyone who “harbored” them.
The wording was substantially changed from the draft version sought by the White House, which would have granted the president authority “to deter and prevent any future acts of terrorism against the United States.” That second clause, giving Bush open-ended authority to fight any future terrorism, was removed from the final resolution.
The legal effect of the joint resolution is unclear. For one thing, the White House takes the position that it doesn’t need congressional permission to protect and defend the United States and that the War Powers Act, which allows Congress to check the president’s war-making authority, is not constitutional. History supports his claim. While the United States has waged about 125 military actions, war has only been formally declared five times. This resolution gave the president a victory of appearances, offering him a broad grant of congressional authority, without forcing the issue of whether such a grant was constitutionally necessary.
What’s in it for Congress? On its face, the Use of Force Resolution looks like a blank check (although it came with a signed check, in the amount of $40 billion). The resolution does not define “terrorism” or “harbored” or any other key terms. It passed with almost no debate. But while the resolution appears almost absurd in its vagueness, it’s most notable for what it is not. It is not the Gulf of Tonkin Resolution, which really was the blank check that arguably allowed President Johnson to unilaterally escalate the war in Vietnam. Thus, while the wide-open wording of the joint resolution appears to give congressional approval to any act of war undertaken by President Bush, it contains several important checks on his powers: by omitting the language sought by the White House, the resolution does not authorize Bush to use force to deter and prevent future acts of terrorism. It also expressly invokes the War Powers Act to subtly remind Bush that–at least on paper–he must answer to them once any military action is undertaken.
Explainer thanks Brad Clanton at the House Judiciary Committee.