2.

3.

When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

When the President takes measures

incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any

constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. 25

The shared powers concept has been applied to the

war powers by numerous commentators as consistent with the

25

343 U.S. at 635-36: The Court ruled in Youngstown that President Truman's seizure of the steel mills during the Korean War by Executive Order was unconstitutional. Justice Jackson found the seizure to be in the third category, inconsistent with three legislative pronouncements, and unjustified by the President's inherent powers as Commander-in-Chief. His three-part analysis of Presidential warmaking powers was recently adopted by Justice Rehnquist in Dames & Moore v. Regan, 453 U.S. 654 at 674 (1981).

tent of the Framers.26

With respect to the historical

cord, future State Department Legal Advisor Abraham Sofaer stified before the Senate Foreign Relations Committee in 77 that the existence of mixed powers comported with his tailed study of practice under the Framers, and that he had und no instance in this study in which a President had mored an unambiguous legislative prohibition.27

The War Powers Resolution

The provisions of the Resolution critical to our review Section 2 (c), which provides:

26

27

See, e.g., Statement of Prof. Abraham Sofaer, 1977
Senate Hearings at 84-116; L. Henkin, Foreign
Affairs and the Constitution (1972 ed.) at 101
("Presidents cannot use the armed forces for long
in substantial operations without Congressional
cooperation; surely any action that can be properly
called war depends on Congressional appropriations
and other forms of approval, expressed or
implied"); Wald, supra at 21; Glennon, The War
Powers Resolution: Sad Record, Dismal Promise, 17
Loyola of Los Angeles L. Rev. 657, 661 (1984)
(hereinafter "Glennon"); but see Turner, The War
Powers Resolution: Unconstitutional, Unnecessary
and Unhelpful, 17 Loyola of Los Angeles L. Rev.
683, 695, (1984) citing United States v. Curtiss-
Wright Export Corp., 299 U.S. 304 (1936) (note
however that the broad statement in Curtiss-Wright
that the President is the "sole organ of the
Federal government in the field of international
relations" was distinguished by Justice Jackson in
Youngstown as based on a factual situation in which
the President had received Congressional
authorization, 343 U.S. at 635, Note 2.)

1977 Senate Hearings at 91-92.

(A)

the circumstances necessitating the introduction of

United States Armed Forces;

(B) the constitutional and

legislative authority under which such
introduction took place; and

(C) the estimated scope and
duration of the hostilities or
involvement,"

Section 5(b), which provides:

"(b) Within sixty calendar days after a
report is submitted or is required to be
submitted pursuant to section 4 (a) (1),
whichever is earlier, the President shall
terminate any use of United States Armed
Forces with respect to which such report
was submitted (or required to be

submitted), unless the Congress (1) has
declared war or has enacted a specific
authorization for such use of United
States Armed Forces, (2) has extended by
law such sixty-day period, or (3) is
physically unable to meet as a result of
an armed attack upon the United States.
Such sixty-day period shall be extended
for not more than an additional thirty
days if the President determines and
certifies to the Congress in writing that
unavoidable military necessity

respecting the safety of United States
Armed Forces requires the continued use
of such armed forces in the course of
bringing about a prompt removal of such
forces,

and Section 5(c), which provides:

"(c) Notwithstanding subsection (b), at
any time that United States Armed Forces
are engaged in hostilities outside the
territory of the United States, its
possessions and territories without a
declaration of war or specific statutory
authorization, such forces shall be

removed by the President if the Congress
so directs by concurrent. resolution."

A concurrent resolution, unlike joint resolutions and bills,

is not presented to the President for his signature.

Sections 6 and 7 of the Resolution establish expedited procedures for consideration of, respectively, joint

resolutions or bills introduced pursuant to Section 5 (b) and

concurrent resolutions introduced pursuant to Section 5(c). Section 8 (a) provides that authority to introduce U.S. armed forces into hostilities shall not be inferred from any provision of law, including any provision in any

appropriation act or from any treaty unless the act or

treaty specifically states that it is intended as such an
authorization. 28
Section 8 (d) provides:

"Nothing in this joint resolution

(1) is intended to alter the constitutional authority of the Congress or of the President, or the provisions of existing treaties; or

(2) shall be construed as granting any authority to the President with respect to the introduction of United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances which authority he would not have had in the absence of this joint resolution."

Section 9 is a separability clause.

There are two critical points to note about the Resolution as enacted. First, the Resolution followed a series of efforts by Congress, including repeal of the Tonkin Gulf Resolution and the adoption by the Senate in

28

This section of the Resolution attempts to close
off certain theories relied on by the executive
branch to justify involvement in hostilities (the
treaty power relied on by President Truman in the
Korean War, see Henkin, supra, Ch. IV, Note 27) and
by courts in justifying the constitutionality of
the Vietnam war (e.g, the ruling in Orlando v.
Laird, 443 F.2d 1039 (1971); cert. denied, 404 U.S.
869 (1971) that Congressional approval of U.S.
involvement in Vietnam could be inferred from
defense appropriations).