CONGRESSWOMAN ELISE STEFANIK
On Thursday, March 17, 2011, the House is scheduled consider H.Con.Res. 28. The resolution was introduced by Rep. Dennis Kucinich (D-OH) on March 9, 2011, and referred to the Committee on Foreign Affairs.
H.Con.Res. 28 would direct the president to remove the U.S. Armed Forces from Afghanistan within 30 days of adoption, or if the president determines that time frame is not safe, by no later than December 31, 2011.
The Constitution divides war powers between Congress and the president. Congress has the power to declare war and raise and support the armed forces, while the president is commander in chief.
H.Con.Res. 28 invokes an arguably unconstitutional provision of the 1973 War Powers Resolution (P.L. 93-148) to direct an immediate withdrawal of U.S. troops from Afghanistan. The War Powers Resolution requires the president to notify Congress within 48 hours of committing forces to military action and forbids forces from remaining for more than 60 days, with a further 30 day withdrawal period, without an authorization of the use of military force or a declaration of war. The 1973 law was passed by two-thirds of Congress, overriding a presidential veto.
Under the terms of that act, if the president commits U.S. troops to foreign hostilities without a declaration of war or statutory authorization, he must withdraw them within a period of 60 to 90 days unless Congress authorizes a longer deployment. A concurrent withdrawal resolution, not requiring the president's signature, can be introduced at any time and must be referred to a committee, which has 15 days to report the measure. It then becomes pending floor business to be voted up or down within three days.
However, under current law, a withdrawal resolution cannot be considered if Congress has enacted a declaration of war or an authorization for the use of military force. Congress enacted a use-of-force resolution for Afghanistan in 2001, although the sponsor claims that does not preclude a withdrawal resolution from being used.
Every president since Richard Nixon has argued that the war powers law is unconstitutional because it interferes with the president's prerogatives as commander in chief. This argument was supported by the Supreme Court's decision in a 1983 immigration case that Congress cannot, by disapproval resolutions, alter the rights and duties of persons outside the Congress because that constitutes lawmaking requiring presidential participation.
Congress has used the withdrawal provisions of the War Powers Resolution three times. In 1993, the House adopted a resolution directing the president to remove troops from Somalia by March 31, 1994. In 1998 and 1999, the House rejected resolutions directing U.S. troop withdrawals from Bosnia-Herzegovina and the Yugoslavia, respectively. Last year, a similar resolution failed in the House by a vote of 65-356.
There is no Congressional Budget Office (CBO) cost estimate associated with this legislation.