Congressional Procedures for Declaring War or Authorizing the Use of Force

The following section discusses how Congress would act on a joint resolution
or bill to declare war or authorize the use of force if the House and Senate were to
consider that measure under the regular procedures of each house. It also describes
how a measure declaring war or authorizing the use of force would be considered
under the procedures contained in the War Powers Resolution of 1973.141

Regular Procedures
The Senate's published precedents do not suggest that a measure proposing to
declare war or authorize the use of force, if considered outside the framework of the
War Powers Resolution, would be immune from the potentially laborious process to
which other bills and joint resolutions are subject (except those that benefit from
special expedited procedures under rule-making statutes). For example, a joint
resolution declaring war or authorizing the use of force presumably would not be
eligible for immediate floor consideration at the time it is introduced, and it
presumably would be subject to possible delays resulting from the Senators' exercise
of their right to debate at length.

Similarly, the precedents of the House apparently do not grant privilege to a
joint resolution declaring war or authorizing the use of force either under the "leave
to report" authority that House rules and precedents give to certain House committees
or as a question of the privileges of the House. Concerning the latter, former House
Parliamentarian Wm. Holmes Brown has observed that "Rule IX [on questions of
privilege] is concerned not with the privileges of the Congress as a legislative branch,
but only with the privileges of the House itself." Thus, neither the enumeration of
legislative powers in Article I, sec. 8 of the Constitution nor the prohibition of that
article against any withdrawal from the Treasury except by enactment of an
appropriation renders a measure purporting to exercise or limit those powers a
question of the privileges of the House.142

Because a joint resolution declaring war or authorizing the use of force proposes
to exercise a constitutional power of "the Congress as a legislative branch," not of
the House alone, it would seem, therefore, not to qualify as a question of privilege.
If so, the House would consider the joint resolution according to its established
procedures for dealing with other legislative measures,143 unless the proposed
declaration or authorization were to be considered under the terms of the War Powers
Resolution.

Congress has adopted eight declarations of war during the 20th century -- two
at the outset of U.S. involvement in World War I and six in the course of World War
II. House and Senate consideration of the initial declarations in each of these wars
is illustrative of the process that Congress followed. On both occasions, the House
and Senate acted to declare war in response to urgent presidential requests made
personally before joint sessions of Congress. In light of the importance that most
Members attached to these requests, it is not surprising that, in both cases, the two
houses acted on the joint resolutions quickly and without following all their regular
legislative procedures.

By way of illustration, the following is a brief summary of how the House and
Senate considered the initial joint resolutions to declare war in 1917 and 1941.

World War I. Congress convened on April 2, 1917, and on that evening,
President Wilson addressed both houses to request that Congress declare war against
Germany. Immediately after the President's address, Senator Martin introduced
S.J.Res. 1, to declare war, which was referred to the Committee on Foreign
Relations. Also on April 2, Representative Flood introduced a companion resolution,
H.J.Res 24, which was referred to the Committee on Foreign Affairs.

The Senate committee reported S.J.Res. 1 with an amendment on the following
day. Senator LaFollette objected to a unanimous consent request that the Senate
consider the measure immediately. Consequently, the joint resolution had to lie over
for a day, pursuant to paragraph 4(a) of Senate Rule XVII. On April 4, the Senate
agreed by unanimous consent to consider the joint resolution, agreed to the
committee amendment, and, after considerable debate, passed the joint resolution by
a roll call vote of 82-6.

The House committee reported H.J.Res. 24 on April 4, and the House then
agreed, by unanimous consent, to consider the measure on the following day "under
the general rules of the House." Because the joint resolution, once reported, was
placed on the Union Calendar, "the general rules of the House" required that it be
considered in Committee of the Whole. Consequently, when the House convened on
April 5, Representative Flood moved that the House resolve into Committee of the
Whole to consider H.J.Res. 24. Before the House agreed to his motion, however, it
also agreed to Representative Flood's unanimous consent request that the House
instead consider S.J.Res. 1, which the Senate already had passed. After much debate,
and after rejecting two amendments in Committee of the Whole and a motion to
recommit with instructions in the House, the House passed S.J. Res. 1 by a roll call
vote of 373-50.

World War II. On December 8, 1941, President Roosevelt addressed a joint
session of Congress and asked for a declaration of war against Japan. Immediately
after the joint session ended, the Senate reconvened and, following a live quorum
call, Senator Connolly introduced a joint resolution declaring war. At Senator
Connolly's request, and by unanimous consent, the Senate agreed to consider the
joint resolution immediately, without committee consideration. Within minutes, and
after brief statements by Senators Connolly and Vandenberg, the Senate passed the
joint resolution by a roll call vote of 82-0.

Also immediately after the President's address, the House acted by considering
and agreeing to Representative McCormack's motion to suspend the rules and pass
H.J.Res. 254, which Representative McCormack introduced at that time. December
8 being a Monday, suspension motions were in order on that day. Immediately after
the House passed H.J.Res. 254 by a roll call vote of 388-1, the House received a
message from the Senate that it already had passed its joint resolution, now numbered
S.J. Res. 116. The House then agreed to Representative McCormack's unanimous
consent request that the House take the Senate joint resolution from the Speaker's
table and agree to it. This action was necessary in order for both houses to pass the
same measure, making it eligible to be presented to the President for his signature.


Endnotes

141
P.L. 93-148. 87 Stat. 555 et. seq. 50 U.S.C. §§ 1541 et. seq.
142
Wm. Holmes Brown, House Practice: A Guide to the Rules, Precedents and Procedures
of the House. Washington, U.S. Govt. Print. Off., 1996, p. 692.
143
The House floor discussion on April 4, 1917, concerning procedures for considering
H.J.Res. 24, supports this interpretation by implication.