1973: War Powers Act

As a first-term senator, Joe Biden signed on as a co-sponsor to what would become one of the most hotly contested and debated laws governing U.S. wars: the War Powers Act, which delineates the responsibilities of the legislative and executive branches for war-making. The legislation was passed in response to President Richard Nixon’s secret bombing of Cambodia and sought to assert congressional authorities over the power to declare war and to require the president to inform Congress within 48 hours of the commencement of military action. It also mandates the termination of any use of U.S. armed forces 60 days after the commencement of military action if Congress has not officially declared war or authorized the use of force. The act contained certain exceptions, including imminent threats or attacks on the United States. It also gave Congress the power to force the end of military action if the president has not complied with the law. Nixon vetoed the bill and Congress overrode him, making it law. Biden would spend decades fighting successive presidential administrations, many of which openly defied the law and refused to abide by its terms. On numerous occasions throughout his Senate career, Biden tried and failed to revise the law and make its powers more clear. It was one of his most consistent campaigns throughout his lengthy Senate career.

While Democratic administrations such as President Bill Clinton’s sought ways to circumvent and weaken the law, Republican administrations openly declared that the War Powers Act was an unconstitutional infringement on the powers of the executive branch and stated that they would never abide by its requirements. Despite his clear public position on war powers, Biden periodically supported military action that circumvented the law he co-sponsored and, in some cases, argued that the requirement to follow the law was subservient to the urgency for military action.

During Biden’s time as vice president, the Obama administration officially argued that it did not need congressional authorization to use force in Libya in 2011. Some constitutional experts accused President Barack Obama of openly flouting the law, with Yale law professor Bruce Ackerman writing, “Mr. Obama is creating a decisive and dangerous precedent for the next commander in chief, who is unlikely to have the Harvard Law Review on his résumé.” Through its actions in Libya, Ackerman argued, the Obama administration set a dangerous precedent. “Allowing the trivialization of the War Powers Act to stand will open the way for even more blatant acts of presidential war-making in the decades ahead,” he wrote. In what had become a common pattern in his career, Biden claimed that he opposed U.S. military action in Libya at the beginning but then publicly defended it.