War Powers

Ken AshfordCongress, Constitution, War on Terrorism/TortureLeave a Comment

I know the Constitution is, in places, ambiguous, but this language seems pretty straightforward:

The Congress shall have power… to declare war…

That’s Article 1, Section 8, of the Constitution.  It’s the "War Powers Clause".

The dirty little secret is that Congress, in all its history, has only declared war five times: the War of 1812, the Mexican-American War (1846-1848), the Spanish-American War (1898), World War I, and World War II.

That’s right.  Congress never made a declaration of war for the Korean War, the Vietnam War, the Persian Gulf War ("Desert Storm"), or our current conflicts in Iraq and Afghanistan.

In some situations, Congress merely authorized military action, without a formal declaration of war.  This was the case with Vietnam, as well as our current situation.

On other occasions, the President merely committed armed forces on his own initiative.  Truman, for example, committed U.S. troops into the Korean War, citing the fact that we were bound by United Nations obligations.  But here’s the rub — this has happened on at least 125 occasions throughout American history.  Remember the invasion of Grenada under Reagan?

So what does the War Powers Clause mean when a President can commit troops to conflict without a formal congressional declaration of war — or indeed, even absent a mere "authorization" by Congress?

This problem was taken up by Congress following the withdrawal of troops from Vietnam in 1972.  Congress passed what is known as the "War Powers Resolution".  It stated that the President of The United States of America can send troops into action abroad only by authorization of Congress or if the United States of America is already under attack or serious threat. The War Powers Act requires that the president notify Congress within 48 hours of committing troops to military action and forbids troops from remaining for more than 60 days without an authorization of force or a declaration of war.

That was all well and good, and the War Powers Resolution has generally been followed since its inception.  The problem, unfortunately, is that it arguably contradicts the Constitution’s War Powers Clause.  Or severely renders that clause virtually meaningless.

No court has passed judgment on the constitutionality of the War Powers Resolution of 1973.  It remains controversial.  Supporters of the law seem to bog themselves in silly semantics (e.g., "Well, we’re not really at war with al Qaeda, because the word ‘war’ means we’re fighting a recognized country, and AQ isn’t a country").

In my view, the War Powers Resolution of 1973 is unconstitutional.  It is certainly not what the Framers envisioned.  Even though the Constitution says that the president is Commander-in-Chief of the armed forces, the Framers clearly did not want one man to decide when to commit our nation’s troops to combat.

Granted, the Constitution’s War Powers clause is antiquated.  If, for example, nuclear missiles are literally flying over the ocean toward our cities, we simply don’t have time to convene Congress and have them pass a vote that military action on our part is required.  Congress itself would be vaporized before such a vote could take place.  Clearly, the Framers did not envision such a scenario, being only familiar with wars waged with muskets and bayonets.  So, in a sense, the War Powers Clause of the Constitution must be modified (or interpreted) to allow for such real-world realities.

But the War Powers Resolution of 1973 simply went too far.  It allowed for the President to commit troops to conflicts anywhere, anytime in the world, and then get after-the-fact approval from Congress.  Even when there is no imminent threat.

Enter James Baker III (Secretary of State under Bush 41) and Warren Christopher (Secretary of State under Clinton), who headed up a bipartisan committee to look at the War Powers Resolution of 1973, following the somewhat disastrous process of several years ago which resulted in the Iraq War quagmire we now find ourselves.  In today’s New York Times, they pen an op-ed detailing the conclusions and recommendations of that committee.  The headline: "Put War Powers Back Where They Belong"

Their findings?  The War Powers Resolution of 1973 is "ineffective at best and unconstitutional at worst".  Well, yes.  No duh.

They continue:

The statute has other problems as well: 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.

As a consequence, the 1973 statute has been regularly ignored — a situation that undermines the rule of law, the centerpiece of American democracy.

Rather than tweak the 1973 Resolution, Baker and Christopher recommend scrapping it in favor of what they call "The War Powers Consultation Act of 2009".  The general thrust?  The President and Congress should consult each other before committing troops to combat.

As usual, the devil is in the details, but already, I don’t see this as a vast improvement over the 1973 Resolution.  For one thing (as Baker and Christopher acknowledge), it still is probably unconstitutional, as it runs afoul of the War Powers Clause.

But let’s get into the details:

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.

I don’t think they get it.  Their proposal is still too "executive-focused".  The President must consult with Congress before ordering an armed conflict?  How about the President ask Congress?  After all, as the Constitution clearly says, Congress shall make that determination.  Congress, not the president, holds the rubber stamp.

Baker and Christopher address this criticism:

Some may argue that Congress should have the dominant role in war powers debates. But it hasn’t played that role under the 1973 resolution. Rather than endorse any absolutist position, our statute would give Congress access to intelligence, a full-time staff for studying national security issues and a well-defined mechanism for consulting and voting on significant armed conflicts.

Yeah, "Some may argue that Congress should have the dominant role in war powers debate".  That "some" would include Madison, Jefferson, and all the other Founding Fathers.  Oh, and the American people, too: according to a Gallup Poll, 79% of us want the president to get Congress’s approval before sending our troops overseas.

So apparently, while their essay is entitled "Put War Powers Back Where They Belong" — apparently, Baker and Christopher, contra the Framers, believe that war powers "belong" primarily with the President.

No, no, no.  Wrong, wrong, wrong.

Baker and Christopher’s proposal is no better than the War Powers Resolution of 1973.  In fact, it’s arguably worse, because it takes the "bug" of the 1973 Resolution and turns it into a feature.  As the op-ed argues, their proposed statute is a good thing because it

[gives] the president the political benefit of forcing Congress to take a position on going to war. And it would do so without insisting that the president get the consent of Congress.

Well, gentlemen — if that’s the case, then your proposed statute fixes nothing, and clearly runs afoul of the Constitution.  If the President can commit troops to armed conflict without "consent of Congress", then we’re back to the same unconstitutional problem we have always had.

I’m glad that the general issue of war powers is being taken up by very important people, and this proposal may be serve as a good launching point for a national debate.  It’s nice that Baker and Christopher are talking about "increased Congressional responsibility" when it comes to war powers.  But they still appear to make Congress subservient to presidential military whims, and I strongly suggest a revisit to the drawing board for Baker and Christopher.