Commission: New War Powers for Congress

A bipartisan commission of high-profile congressional and White House alumni released a report Tuesday calling for the repeal of the 1973 War Powers Resolution. The National War Powers Commission, co-chaired by former Secretaries of State James Baker (R) and Warren Christopher (D), wants the next Congress to enact the War Power Consultation Act. This act would require the president to “consult” with a defined, permanent joint committee of congressional leaders before engaging in a “significant armed conflict” lasting longer than a week. “This is a practical solution to a theoretical debate,” Baker said. He noted that the conclusions of the committee were unanimous, and said the rule of law is “undermined” by the current War Powers Resolution. “From the standpoint of Congress, [the new act] gives Congress a seat at the table in deciding whether or not to go to war,” Christopher said. The act would establish a “Joint Congressional Consultation Committee,” consisting of the Speaker of the House, the Senate majority leader, the minority leaders of both chambers and the chairmen and ranking members of the House and Senate Foreign Affairs, Armed Services, Intelligence and Appropriations committees, with which the president would have to consult before going to war. The new law would require the Congress to pass a concurrent resolution approving the conflict within 30 days of the consultation if it does not expressly authorize the conflict or declare war. If such a resolution were to fail, the Congress could opt to pass a resolution of disapproval. If that resolution was approved, the president would have the option of vetoing it. Congress could then attempt to override the veto. It’s unclear exactly what might happen in that scenario, although the report suggests the override would not be binding on the president.

Editor's Note: It's official, James Baker has lost his mind. To suggest such a usurpation of the Executive Branch's constitutionally mandated charge, to completely ignore the fact that the president holds a dual role as both president and Commander-in-Chief, to disregard that the Framers specifically charged one man and not a committee with commanding the military, is either the height of ignorance or a deliberate attempt to circumvent the Constitution. If Congress doesn't want to support a military action engaged by the Commander-in-Chief they have the power to defund that engagement. That's all they are constitutionally enabled to do. This act, this suggestion is unconstitutional at the very least and an act of the Fifth Column at it's best.

This is silly beyond silly.

This pretends that the reason we are in Iraq is that congress wasn’t consulted. Bush never did anything without consulting with them. They voted for it. They voted for it again and again.

And, remember, it was they who passed the resolution calling for the overthrow of Saddam. What did they think they were saying?

But I also remember that after they voted for war, several high-profile Dems ran straight outside from their “yes” vote to jump in front of a camera to speak out against the war they had moments before voted to commence.

There is no legal or constitutional corrective for this kind of mendacity. The law works. The constitution works. The people who voted for the war are trying to claim they had no responsibility for it. But they are lying, of course, and no law in the world can un-lie a lie.

Strict constructionists who don't want the judiciary making up rights and legislating from the bench also have to confront the fact that the Constitution requires that Congress declare war. We have to reconcile that with the modern world where US troops are stationed throughout the world, and can be called into conflict on a moment's notice.

In 1789, it would have been inconceivable for the President to initiate a war, because he would have had to muster an army and the funds to pay for that army, and then march or sail them somewhere. That process took weeks or months, at least. A declaration of war to precede that action was not an unwieldy limit on the process, and was expected.

Now, with ICBMs, cruise missiles, strategic air forces, a ground force stationed all over and a navy that covers the globe, the President, purporting to use his power as commander in chief, can initiate what the Constitution would have envisioned to be a war on a moment's notice and without Congressional approval. The problem was ignored after WW2. During Vietnam, the anti-war movement made a stink about it, and Congress decided it needed to have a say in initiating wars. The War Powers Act was the result. It allows the President to initiate military conflicts, but if they escalate to a certain level, the President has to come to Congress for approval after a period of time. Congress' approval is the functional equivalent of a declaration of war.

The issue that could arise is what happens when the President, as Commander in Chief, initiates an action that creates a condition of war. For example, an attack on Iran, a sovereign nation, would generate a response, and we would be at war. Should the President not have an authorization from Congress before waging war on his own? (Note that Bush did get such authorization before Iraq, and Bush 41 also got authorization before the Gulf War.)

I think the Constitution requires an authorization before initiating action that will create a state of war. I don't think it's an optimum way to deal with threats in the modern world. You can't, for example, telegraph to the Iranians that you are going to attack them; you want to surprise them. But to be consistent, we have to follow the Constitution, even when we wish it was worded differently. If we want the President to be able to start wars on his own, we need an amendment. Otherwise, resolutions for authorization such as the Iraq War resolution, are the best compromise. The President can get authorization for a war that has not started yet, and he can then start it at a time of his choosing.

The President does not need authorization or approval of actions to defend the nation or our military. If we are attacked, a state of war exists that was declared by another entity against us. The President, as commander in chief, can and should defend us against a war declared by others. He just can't initiate a war. Congress can refuse to fund it if they disagree with the President.

In summary, the War Powers Act has worked pretty well since the 70s at allowing flexibility in a modern setting while staying true to the Constitution's structure. I don't know what problem this proposal is attempting to fix, but if the proposal gives Congress more oversight in the management of war, that would be crazy. As the Editor's Note states, Congress' role after war begins is to sit back and let the CinC fight it. They can pull funding if they are not happy.

Osama Bin Laden declared war on the US in 1998. But you are right, most other nations do not declare war; that was a concept of European nations that has since gone out of favor.

I think having Congress authorize the President to wage war meets the requirements of the Constitution--it is the functional equivalent of a Congressional declaration of war. The only difference is that we are not actually at war when the resolution passes; we are just authorizing the President to initiate it at a later time if he so chooses. In essence, Congress has delegated the actual initiation of war to the President, for that particular conflict. There's no formal "declaration", but when the President acts following Congressional authorization, a. war exists; and b. Congress approved it.

One corollary would be that if Congress rescinds an authorization BEFORE war has begun, then the President no longer is authorized to act. Once war has begun, however, the President as commander in chief is responsible for fighting it, and cannot be made to stop. Congress' role is to fund or defund it, and to approve any treaty that results.

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