authorized by Congress, and Section 5(c), under which Congress can require termination of such use by concurrent resolution, are an unconstitutional limitation on the President's Commander-in-Chief power and his prerogative to defend the national security.3 The Resolution has now been tested in practice for fifteen years. Presidents have sent reports to Congress under the Resolution in connection with the evacuations of Pnomh Penh, Danang, and Saigon, the Mayaguez incident, the Iranian hostage rescue, the 1981 multinational peacekeeping force in the Sinai, Lebanon in 1982, Chad, Grenada, 4 the 1986 bombing 3 See, e.g., Minority Views of Representatives (1977) (hereinafter "1977 Senate Hearings") at 20- For summaries and analyses of these incidents, see, 5 of Libya, and the engagement of U.S. forces in the Persian Gulf.6 In the cases of Lebanon7 and El Salvador8, Congress passed supplemental legislation addressing the circumstances of introduction of U.S. armed forces into those particular regions and circumstances. Throughout this period, discussions as to the constitutionality of the Resolution have continued, and both the Resolution and its implementation have remained the subject of controversy. In addition to the constitutional issues raised at inception as to the proper allocation of warmaking power between the legislative and executive branches, the Supreme Court's 1983 decision in INS v. Chadha9 raises the issue of whether Sections 5 (c) and 5 (b) violate the presentment clauses in Article I, Section 7 of the Legislation has been introduced at various Constitution. 5 6 Am. J. Int'l L. 605 (1977). See generally Rep. Robert Torricelli's commentary, For a summary of Persian Gulf notices, see Lowry, supra, 676 F.Supp. at 336-37. 7 Pub. L. 98-119, 97 Stat. 805, October 12, 1983. 8 Pub. L. 98-525, Title III, $310, 98 Stat. 2516, October 19, 1984; Pub. L. 98-473, Title I, $101 (h), 98 Stat. 194, October 12, 1984. times to amend, modify or wholly replace the Resolution; most recently, S.J.Res. 323, introduced on May 19, 1988 by Senators Byrd, Nunn, Warner and Mitchell, would delete current Sections 2 (c), 5(b) and 5(c) entirely, substituting detailed procedures for consultation between President and Congress and reliance on judicial enforcement. In the judicial arena, Congressmen have challenged the adequacy of the President's compliance with the requirement of Section 4 (a) of the statute that reports be made to Congress of the nation's military involvement in El Salvador and the Persian Gulf and have raised other war powers issues with respect to the Grenada invasion and U.S. involvement in Nicaragua.10 The latest such action, Lowry v. Reagan, is currently pending before the Court of Appeals of the District of Columbia. Citing considerations of justiciability, the courts to date have declined to rule on whether any given Executive Branch response is in compliance with the requirements of the Resolution. It is the intent of the Committee to comment not on the merits of the foreign policy issues which the War Powers Resolution has been invoked to address, but rather on certain constitutional and legal issues raised by the Resolution in its present form, in particular: 10 Lowry, supra (Persian Gulf); Sanchez-Espinoza v. (i) Whether Sections 5 (b) and 5(c) of the Resolution Section 3 of the Resolution should be expanded so as to serve as a substitute for I. Constitutional authority, the Resolution and the Chadha decision In order to analyze any proposed revisions to the Resolution, it is critical to examine the underlying Constitutional positions of the executive and legislative branches; the background of the statute itself; and the nature of the separation of powers analysis in Chadha and subsequent Supreme Court decisions touching on separation of powers. A. Constitutional Sources of Authority The Constitutional grants of authority to Congress and the President relevant to the war powers and the legislative veto can be briefly summarized. Congress has the power to legislate, provided that legislation shall be presented to the President, and if vetoed, passed by twothirds of each house; to declare war; to raise and support armies and a navy; to appropriate funds for these purposes; and to make all laws necessary and proper to carry out these powers, and all other powers vested in the U.S. government. The President is to have the executive power; to be the Commander-in-Chief of the Army and Navy; to make treaties and to send and receive ambassadors; and to faithfully execute the laws.11 11 Article I, § 1 provides "All legislative powers |