Fixing the War Powers Resolution

As readers of Security Dilemmas may know, I am currently working on questions of presidential-congressional war powers, and have a contract with Praeger Press for my book Restoring the Balance: War Powers in an Age of Terror. So, it is of course of interest to me that the National War Powers Commission has published its report (the pdf file of the final report is here) on how to fix war powers. The Commission also published an op-ed in today's New York Times summarizing their findings.

The Commission notes that the War Powers Resolution of 1973 has been monumentally ineffective at resolving fundamental questions -- both constitutional and political -- of war powers. The WPR is also, most likely, unconstitutional, as the stipulation that Congress need only pass a concurrent resolution to force the president to withdraw deployed troops seems to violate the prohibition on legislative vetoes established in INS v. Chadha. But, more importantly, the WPR wasn't really in tune with political reality:

it too narrowly defines the president’s war powers to exclude the power to respond to sudden attacks on Americans abroad; it empowers Congress to terminate an armed conflict by simply doing nothing; and it fails to identify which of the 535 members of Congress the president should consult before going to war.

Their recommendations:

Our proposed statute would provide that the president must consult with Congress before ordering a “significant armed conflict” — defined as combat operations that last or are expected to last more than a week. To provide more clarity than the 1973 War Powers Resolution, our statute also defines what types of hostilities would not be considered significant armed conflicts — for example, training exercises, covert operations or missions to protect and rescue Americans abroad. If secrecy or other circumstances precluded prior consultation, then consultation — not just notification — would need to be undertaken within three days.

To guarantee that the president consults with a cross section of Congress, the act would create a joint Congressional committee made up of the leaders of the House and the Senate as well as the chairmen and ranking members of key committees. These are the members of Congress with whom the president would need to personally consult. Almost as important, the act would establish a permanent, bipartisan staff with access to all relevant intelligence and national-security information.

Congress would have obligations, too. Unless it declared war or otherwise expressly authorized a conflict, it would have to vote within 30 days on a resolution of approval. If the resolution of approval was defeated in either House, any member of Congress could propose a resolution of disapproval. Such a resolution would have the force of law, however, only if it were passed by both houses and signed by the president or the president’s veto were overridden. If the resolution of disapproval did not survive the president’s veto, Congress could express its opposition by, for example, using its internal rules to block future spending on the conflict.

This is an admirable effort, and is infinitely better than the War Powers Resolution (not to mention that it solves the legislative veto problem). However, it is not likely to satisfactorily resolve the concerns over war powers.

On one hand, the proposed statute gives broad powers to the president, but still couches the commander-in-chief power under the domain of the legislative branch. As I have argued multiple times on this site, as well as in two law review articles and my forthcoming book, it is not at all clear that the Constitution intends Congress to have any say whatsoever over the deployment of the armed forces of the United States. If, as I argue, the "declare war" clause is about the power to transform the legal status of the political arenas rather than the power to deploy troops or initiate hostilities, then giving Congress any power to force the president to bring deployed troops home is a violation of the separation of powers mandated by the Constitution.

On the other hand, the method by which the proposed statute functions is unlikely to satisfy proponents of a more robust role for Congress on the issue of war powers. Forcing the president to bring the troops home would require: 1) A vote to authorize the deployment to fail; 2) Both Houses to pass a "resolution of disapproval," and; 3) Both Houses to override the inevitable presidential veto by a 2/3 vote. It is all but inconceivable that this would happen. Even in a fantastically unpopular war, like the current one in Iraq was during its darkest days, it is unlikely that enough of the president's fellow party members would defect. Furthermore, as Iraq has clearly demonstrated, even those congressmen vehemently opposed to the war are loath to go on record opposing the president, and even more hesitant to take actions to end the war when such actions would place blame and responsibility on their heads, rather than on the president's.

The report is a welcome improvement on the War Powers Resolution. But I do not expect that it will have any meaningful impact on the balance of war powers between the president and Congress. It does mandate regular reporting on active troop deployments, and creates a clear mechanism for doing so, and that is a good thing. But, even while rejecting the War Powers Resolution, presidents have tended to regularly report to Congress, so not much will change there either. Still, the War Powers Resolution is a terrible piece of legislation, and deserves to be put to rest. Whether this proposed legislation can and will pass is a question to which I do not know the answer. It definitely seems to reduce the power of Congress (although only hypothetically, as Congress has never even really tried to enforce the WPR), so it should be an interesting debate.

UPDATE: I'm currently teaching US Foreign Policy in summer school, and as we talked about war powers yesterday, we considered the Commission's report today. It occurred to me that there's another reason this proposal might be not-so-good from the perspective of desiring a strong congressional role. Forcing a vote on approving the deployment of force at the 30 day mark may make it more likely that Congress will fail to stand up to the president. It's exceedingly hard for Congress to go on record as opposing the use of force by the president. After all, no one wants to be seen as soft on ____ (Insert communism, terrorism, or whatever bogeyman is popular); furthermore, congressmen don't want to be blamed for whatever happens, especially if they force the troops to come home. So, at the 30 day mark, when the conflict is still relatively fresh, there may be bureaucratic inertia that favors the president and renders any dissent impotent.