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1 1 (January 26, 2022)

handle is hein.crs/govegqt0001 and id is 1 raw text is: Con gre sional Research Service Info~ ~ingt Iegiiati'e Iebatesi~ce1914 0 Updated January 26, 2022 Defense Primer: Legal Authorities for the Use of Military Forces By the Framers' apparent design, to keep the nation's purse and the sword in separate hands and in other ways hinder the nation's embroilment in unnecessary wars, the Constitution divides war powers between Congress and the President. Congress is empowered to declare war, provide for and regulate the Armed Forces, and issue letters of marque and reprisal, as well as to call forth the militia to suppress an insurrection, repel an invasion, or execute the Laws of the Union. The President, as the Commander in Chief, has the responsibility to direct the Armed Forces as they conduct hostilities, put down insurrections, or execute the law when constitutionally authorized to do so. The extent to which the President has independent authority under the Constitution, without explicit statutory support, to use the military for purposes other than to repel a sudden attack is the subject of long-standing debate. At the same time, efforts in Congress to exercise its constitutional war powers in some way that is perceived to constrain military operations have met with objections that the constitutional separation of powers is imperiled. Overview Congress has enacted 11 separate formal declarations of war against foreign nations in five different wars, each time preceded by a presidential request either in writing or in person before a joint session of Congress. Congress has also enacted authorizations for the use of force rather than formal declarations of war. Such measures have generally authorized military force against either a named country or unnamed hostile nations in a given region. In most cases, the President has requested the authority; Congress has sometimes given the President less than what he requested. Congress has also authorized the President to use the military forces or the militia domestically to put down insurrections or execute civilian law when certain criteria are met. As noted in CRS Report R42659, The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law and CRS Report RL31133, Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications, Congress has provided approximately 50 statutory authorizations to use the military forces for foreign or domestic purposes-not including formal declarations of war. As for the use of such authority, CRS Report R42738, Instances of Use of United States Armed Forces Abroad, 1798-2021 lists hundreds of instances of U.S. uses of force abroad, observing they reflect varying degrees of intensity and longevity. It notes that most major uses of military force abroad-of the type that might be classified as wars or armed conflicts under international law-historically had been authorized by Congress. The end of World War II appears to have heralded a change in this regard. For example, President Truman sent troops to defend South Korea in 1950 under his own authority and a U.N. Security Council resolution, but without specific authority from Congress. War Powers Resolution Concern that too much of the war powers had accreted to the President while Congress's own authority had eroded led to the 1973 enactment of the War Powers Resolution (WPR; P.L. 93-148) over President Nixon's veto. The WPR asserts that the President has the authority to commit U.S. troops to hostilities in only three sets of circumstances. WPR Section 2(c) provides that the President's powers to introduce U.S. Armed Forces into situations of hostilities or imminent hostilities are exercised only pursuant to- (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its Armed Forces. The WPR also attempts to circumscribe implied sources of authority. WPR Section 8 provides that the authority to introduce Armed Forces is not to be inferred from any provision of law or treaty unless such law, or legislation implementing such treaty- (a) specifically authorizes the introduction of Armed Forces into hostilities or potential hostilities, and (b) states that it is intended to constitute specific statutory authorization within the meaning of the WPR. Presidents have taken a broader view of the Commander-in- Chief power to use military force abroad. They have variously asserted as sources of authority United Nations or NATO decisions involving military intervention, appropriations measures, and other statutes that do not specifically cite the WPR. Additionally, they have relied on the Commander-in-Chief power itself and the President's foreign affairs authority under Article II of the Constitution.

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