Experts: Bush could act without Congress

By Thurston Hatcher
CNN

(CNN) -- When the House and Senate voted to support the Gulf War 10 years ago, United States President Bush said thanks, but he didn't need their backing to pursue military action.

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On Friday, Congress passed a joint resolution authorizing his son, President George W. Bush, to use force against those responsible for Tuesday's attacks against U.S. targets. But could he have proceeded without it?

“If George Bush had firm evidence that (Osama) bin Laden was behind this and it was also clear that Afghanistan had been harboring him, and the president decided, ‘Why wait? It’s time to respond,’ he could without any approval from Congress,” said professor Barry Carter of Georgetown University Law School in Washington.

Although framers of the U.S. Constitution gave Congress the power to declare war, they made the president commander-in-chief of the armed services. Ever since, there’s been occasional disagreement between the executive and legislative branches over military authority.

In 1973, Congress passed the War Powers Act over President Nixon’s veto. The lawmakers acted in response to President Johnson’s escalation of the Vietnam War and Nixon’s invasion of Cambodia.

The act requires the president to consult with Congress before deploying the military in “hostilities,” and to notify Congress of troop commitments within 48 hours of deployment. The president also must end military action within 60 days unless Congress declares war or grants an extension to the armed forces.

But the executive branch often has ignored the resolution, and Congress increasingly hasn't pressed the issue, said Herbert Johnson, a professor of constitutional law at the University of South Carolina Law School in Columbia.

“The major concession that’s been made historically has been simply that the president usually will consult with members of Congress concerning what he has to do,” Johnson said.

Congressional declarations

If the president has the declaration of war, he can do what he wants, Carter said.

“If he doesn't have it, he essentially gets a free 60- to 90-day period when all he’s got to do is make perfunctory consultation with Congress and a report.”

There have been some challenges to executive authority. In 1999, 31 U.S. lawmakers claimed President Clinton had violated the War Powers Act by pursuing military strikes against Yugoslavia without congressional authorization. A federal judge dismissed the suit, saying Congress had sent mixed messages about its position.

But some critics claim the War Powers Act is unconstitutional, arguing it interferes with the president’s power to pursue foreign policy and lead the military. For others, the resolution simply doesn't resonate as it did in its Vietnam War context.

“It’s more the exception rather than the rule these days, and everyone has agreed it ought to be rewritten or changed,” Carter said.