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Attorney Samuel Dewey Considers the Issue of Congress Versus the Executive: Who Controls the War Powers?

Rising tensions in eastern Europe have brought to the forefront the issue of who controls the war powers in the U.S. Federal Government.  As attorney Samuel Dewey explains, Congress has urged President Joe Biden to respect the Constitutionally-created separation of powers in all issues related to the military.

But, what powers does each branch of the federal government possess on their own, and what powers are shared?  Here are the roles of each branch of the federal government as well as an explanation of their authority to make decisions about war.

Constitutional Powers

The U.S. Constitution divvied up war powers between both the president and Congress.  The President is designated as the commander in chief of the military, but only Congress has the ability to appropriate funding for the military and to declare war.  In recent years the President and Congress have created a mechanism to invoke force short of a Declaration of War—an Authorization for the Use of Military Force.  This Act of Congress does not declare war, but authorizes the President to use force in a set of circumstances under a set of conditions.

To this point, the U.S. doesn’t seem to be close to considering a declaration of war against Russia following its invasion of Ukraine.  If the President were to want to declare war on Russia at any point, he would technically have to seek Congress' approval to do so.

War Powers Act

The War Powers Act was passed in 1973 to place limitations on the President's ability “to initiate or escalate military actions abroad.”  It was passed just two years before the U.S. ended its direct involvement in the Vietnam War, and 19 years after it began.

Congress passed the Actbecause multiple Presidents had taken unilateral action to send troops overseas during both the Korean and Vietnam Wars without the approval of Congress.  While then-President Nixon vetoed the bill, Congress overrode the veto.

Congress  did not declareeither North Korea or North Vietnam, yet U.S. Presidents repedetely and unilateral committee U.S. armed forces to these conflicts. . The frustration in Congress boiled over under the Nixon Administration, when it was discosved that the United Statescarried out bombings of Cambodia in secret without first receiving Congress' consent.

Some members of Congress are concerned that Biden might consider taking similar actions.  A bipartisan group of U.S. Representatives sent the president a letter in February urging him “to respect the separation of powers . . . and Congress’s constitutional war powers authority.”


The War Powers Act has been challenged multiple times since it was enacted, with various Presidents either sending troops to fight in foreign conflicts or carrying out bombings in foreign countries.  As Sam Dewey points out, the Executive Branch has consistently maintained that the Act is unconstitutional as it restricts the President’s power under the Commander-in-Chief clause to take unilateral military action to protect the country against imminent threats.

The bipartisan group of U.S. Representatives fears the White Housecould invoke this rational to unilaterally commit troops to the conflict with Russia.  The members of Congress want the President to get their approval before sending any troops to Ukraine, or pulling any troops in the region out.  They have signaled they are ready to exert their war powers to ensurethe President seeks Congressional approval.

About Samuel Dewey

Samuel Dewey is a successful lawyer and former Senior Counsel to the U.S. House of Representatives Financial Services Committee and Chief Investigator and Counsel to the U.S. Senate Special Committee on Aging.  Mr. Dewey specializes in:  (1) white collar investigations, compliance, and litigation; (2) regulatory compliance and litigation; and (3) complex public policy matters.  Within these fields Mr. Dewey is considered an expert in Congressional investigations and attendant matters. Mr. Dewey has a B.A. in Political Science, a J.D. from Harvard, and is admitted to practice law in Washington, D.C., and Maryland.

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