When can the President Declare War

Watching the developments with Afghanistan and the Taliban taking over that nation, and knowing that American troops had been in that nation for twenty years protecting the people of Afghanistan, what we’re witnessing now is a bit confusing to some. Bottom line, America had been there too long, some say long enough. It was time for the people of Afghanistan to stand up for themselves and defend themselves. A plan was already in place for American troops to be withdrawn a little bit at a time. And then everything went crazy, and to the naked eye, it looks like there was not a completely laid out plan for a smooth withdrawal of American troops, after all. I also don’t think American decision-makers, from the Pentagon to the President, to anyone else, saw the Taliban coming in and taking over Afghanistan so quickly as they did.
But should President Biden have then declared war against the Taliban? Can a President declare war? That’s the subject of our Civics 101 column today.
The War Powers Resolution (also known as the War Powers Resolution of 1973 or the War Powers Act) is a federal law intended to check the U.S. President’s power to commit the United States to an armed conflict without the consent of the U.S. Congress. The resolution was adopted in the form of a United States congressional joint resolution. It provides that the President can send the U.S. Armed Forces into action abroad only by declaration of war by Congress, “statutory authorization,” or in case of “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”
The War Powers Resolution requires the President to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30-day withdrawal period, without congressional authorization for use of military force (AUMF) or a declaration of war by the United States. The resolution was passed by two-thirds each of the House and Senate, overriding the veto of the bill by President Richard Nixon.
It has been alleged that the War Powers Resolution has been violated in the past. For example, President Bill Clinton in 1999, during the bombing campaign in Kosovo. Congress has disapproved of all such incidents, but none has resulted in any successful legal action being taken against the President for alleged violations.
Under the United States Constitution, war powers are divided. Under Article I, Section 8. Congress has the power to declare war, grant Letters of Marque and Reprisal (i.e., license private citizens to capture enemy vessels), raise and support Armies (for terms up to two years at a time), provide and maintain a Navy, make Rules for the Government and Regulation of the land and naval Forces, provide for calling forth the Militia, make Rules concerning Captures on Land and Water, provide for organizing, arming, and disciplining, the Militia; and govern such Part of [the militia] as may be employed in the Service of the United States.
Section 8 further provides that the states have the power to: Appoint the Officers of the militia; and train the Militia according to the discipline prescribed by Congress.
Article II, Section 2 provides that: “The president shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States when called into the actual Service of the United States.”
It is generally agreed that the commander-in-chief role gives the President power to repel attacks against the United States, and makes the President responsible for leading the armed forces. The President has the right to sign or veto congressional acts, such as a declaration of war, and Congress may override any such presidential veto. Additionally, when the President’s actions (or inactions) provide “Aid and Comfort” to enemies or levy war against the United States, then Congress has the power to impeach and remove (convict) the President for treason. For actions short of treason, they can remove the President for “Bribery, or other high Crimes and Misdemeanors,” the definition of which the Supreme Court has left up to Congress. Therefore, the war power was intentionally split between Congress and the Executive to prevent unilateral executive action that is contrary to the wishes of Congress, and require a super-majority for legislative action that is contrary to the wishes of the president.
The information on the War Powers resolution comes from Wikipedia for this column.