A privately organized Commission on War Powers recommended last week that the 1973 War Powers Resolution be repealed and replaced by a Congressional Joint Committee on Consultation and new procedures to approve or disapprove a significant armed conflict.
[IMGCAP(1)]The 12-member, bipartisan commission, co-chaired by former Secretaries of State Warren Christopher and James Baker, said the current law is flawed. In fact, every president since Richard Nixon has refused to comply with the War Powers Resolution on the grounds that it is an unconstitutional infringement on the presidents powers as commander in chief. Among other things, the current act authorizes Congress to terminate combat operations by adopting a concurrent resolution. The Supreme Court ruled in the 1983 Chadha immigration case that one-house and two-house legislative vetoes do not conform to the Constitutions lawmaking requirements of two-house passage and presentment to the president.
Under the substitute law proposed by the commission, the president must, prior to committing troops to a significant armed conflict (one likely to last more than a week), submit a classified report to the new joint committee justifying the need for action. The president is then required to consult at least once every 60 days with the committee.
Within 30 days after the conflict begins, if Congress has not enacted a declaration of war or a law authorizing the use of force, a privileged concurrent resolution approving the troop commitment must be brought to a vote in both chambers. If either chamber rejects the approval resolution, any Member can then offer a privileged joint resolution disapproving the commitment. If the joint resolution is vetoed by the president, a two-thirds override vote by both chambers would be necessary to terminate the commitment.
If I were either of the current presidential candidates, I would endorse the commission proposal in a heartbeat. It proposes to vastly expand presidential powers and options beyond current practice. In the use of force joint resolutions for Iraq (1991 and 2002) and Afghanistan (2001), Congress was able to negotiate conditions and limitations on the use of force with the president, who then signed the resolutions into law.
That will not be the case if Congress uses the concurrent resolution of approval approach. No matter how many conditions Congress might try to place on the presidents use of force in such a concurrent resolution, the president would be under no legal obligation to comply because the provisions would have no force or effect outside Congress. This is because concurrent resolutions are mere sense-of-Congress expressions. (Whos going to charge the president with failing to faithfully execute a non-law?)
It stands to reason that, given this option, no future president will ask for a declaration of war or use of force law when the alternative is a nonbinding sense-of-Congress resolution approving the commitment of troops to combat. Never mind that such a resolution is probably unconstitutional under the Chadha decision requiring two-house passage and presentment to the president. (Its unlikely the court would directly rule on the issue since in recent times it has sidestepped war powers disputes between the branches on the grounds that they present political questions best left to the president and Congress to resolve.)
Another clear advantage to the president presented by the commissions proposed law is the unique relationship that would be established with the 20-member, bipartisan joint committee. Its members would include the Speaker of the House, Senate Majority Leader, House and Senate Minority Leaders and the chairmen and ranking members of eight key committees. Whereas the administration must currently answer to several committees for its war policies, often in public hearings, the new arrangement will give the president both the incentive and justification to deal exclusively with the joint committee in closed sessions. This is something administrations have wanted for years given the burden of officials delivering duplicative testimony in open forums before multiple committees and subcommittees.
The real losers in this new arrangement, of course, will be the rest of the House and Senate and the American people, all of whom will be left in the dark about what is said and done in the closed-door committee consultations with the president. They will be left to trust the judgment of committee members on the necessity for war and its subsequent conduct.
The Commission on War Powers understandably reflects the leadership and views of two former secretaries of State who no doubt see Congress as many of their predecessors have: as an ill-informed, noisy, quarrelsome and meddling micro-manager when it comes to deciding the great issues of war and peace. If the administration must accommodate Congress in some way before making such decisions, they reason, it is best done among a few power elites in Congress, behind closed doors and shielded by classified briefings and documents.
Unfortunately, that attitude flies in the face of everything the Framers of the Constitution had in mind when they entrusted to the first branch of government, the peoples branch, the decisions for going to war, raising and supporting armies and a navy, and making rules for the government and regulation of the land and naval forces. These responsibilities must not be delegated to a select few at the expense of an informed membership and citizenry. Lacking such full participation and deliberation, the trust and confidence of the people in the system will rapidly erode.
Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for Scholars and former staff director of the House Rules Committee.