War Powers Consultation Act

Former Secretaries of State James Baker and Warren Christopher take to the op-ed pages of the NYT to call for a new War Powers Act.

A bipartisan group that we led, the National War Powers Commission, has unanimously concluded after a year of study that the law purporting to govern the decision to engage in war — the 1973 War Powers Resolution — should be replaced by a new law that would, except for emergencies, require the president and Congressional leaders to discuss the matter before going to war.

[…]

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.

It should be noted at the outset that, were such a law on the books in 2002, the Iraq War would almost certainly have proceeded exactly as it did. President Bush in fact not only consulted with Congress but got authorization to commence military operations in Iraq at his sole discretion by rather wide margins from both Houses.

In terms of preventing “bad” wars, I’m dubious as well. A determined president can, as has been repeatedly been demonstrated, get legal advice showing him how to navigate the loopholes in the law. And, goodness, this one sounds to have loopholes you can drive a truck through. “Sorry, I couldn’t consult with you guys. Otherwise, the operation wouldn’t be covert, now would it?” “This mission was necessary for protecting Americans abroad. I mean, if Ayatollah Nutsojihad got WMD, American tourists in Israel wouldn’t have been safe at all.” Once hostilities are commenced and American troops are in harm’s way, a Rally ‘Round the Flag effect invariably happens and Congress would be hard pressed to then vote No.

Those rather large caveats notwithstanding, these reforms sound like good ones. First, even if we only established the Super Duper Joint Select Committee on Foreign Policy Stuff and ignored everything else, it would be a major step forward. Now, a dozen preening Committee chairman can easily claim that any given activity falls within their purview and then stage photo-op “hearings” to get their faces on teevee. A consolidated, bipartisan group might actually provide serious advice and gain the trust of the executive to make consultation more attractive.

Second, forcing Congress to vote Yay or Nay would give them skin in the game. As it stands, they can claim they supported a war if it’s popular and distance themselves from it the moment things start to go south. Or they can vote to support the war and then pull a Hillary, claiming that they were only supporting the authority to go to war, not going to war itself.

It’s worth remembering that the 1973 War Powers Act was vetoed by President Nixon and required a two-thirds override to pass. One imagines that the same will be true of this War Powers Consultation Act. Getting that degree of consensus for much of anything is going to be incredibly difficult in the current political climate.

FILED UNDER: Congress, Military Affairs, National Security, US Politics, , , , , , , , ,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Bithead says:

    It should be noted at the outset that, were such a law on the books in 2002, the Iraq War would almost certainly have proceeded exactly as it did. President Bush in fact not only consulted with Congress but got authorization the commence military operations in Iraq at his sole discretion by rather wide margins from both Houses.

    And that, James, IMV is exactly the reason the law is being contemplated… to give the American left the impression something is being done to prevent wars in the future. Of course they neglect, as you point out that the thging would have gone exactly the way it did, mostly because of unanimous support from both houses, and in turn they were reacting to the near universal cry from the American people.

    That said, there’s this, too; I have my doubts that such a law would be considered constitutional, if tested. This seems a rather large power grab by Congress… one simply not supported by the Constitution. That’s balanced somewhat by the idea that a constitutional challenge isn’t exactly on the minds of anyone when we’ve been attacked.

  2. Alex Knapp says:

    Bithead,

    This seems a rather large power grab by Congress… one simply not supported by the Constitution.

    Have you ever bothered to read the Constitution? Because if you had, you would know how ridiculous this statement is.

  3. Bithead says:

    Obviuosly, I have, and just as obviously, we disagree. I’m at work and so don’t have the time to respond to this correctly, at the moment.

  4. Michael says:

    Have you ever bothered to read the Constitution? Because if you had, you would know how ridiculous this statement is.

    I spent several minutes trying to discern the sarcasm in his statement, refusing to believe that anybody could say such a thing seriously.

  5. Anderson says:

    Bithead is Bithead, folks. Nothing new there.

    As for changing the law, seems to me the problem isn’t getting into wars too easily, it’s getting out.

    The only way that Congress has to “un-declare” war is to refuse funding. Ever since the Mexican War (er, Mexican-American War, sorry), the war party has been able to beat the tom-toms and accuse its opponents of Not Supporting the Troops if they don’t fund ’em. As if they would all be cut off without food, water, or tickets home.

    So what about this: Congress declares war for a year at a time, and each additional year of conflict has to be re-declared. I suspect an amendment would have to be enacted, but what about the merits, if any?

  6. Dave Schuler says:

    While we’re at it how about a Congressional Taxing Powers Consultation constitutional amendment under which any attempt by Congress to increase revenues by any means whatever including new taxes or fees, raising marginal rates on taxes or raising fees, or borrowing would be subject to a direct popular vote?

  7. Dave Schuler says:

    As for changing the law, seems to me the problem isn’t getting into wars too easily, it’s getting out.

    I think the underlying problem is Congress’s willingness to raise revenue. It isn’t specific to one particular party: neither Democrats nor Republicans have any particular opposition to raising revenue they merely have different preferred ways to do it. Democrats tend to look to tax increases; Republicans tend to look to borrowing.

    BTW I think these preferences are completely consistent with the two parties’ differing core constituencies.

  8. Bithead says:

    As for changing the law, seems to me the problem isn’t getting into wars too easily, it’s getting out.

    So, that’s a function of law?
    Or is it a function of winning the war?

  9. Bithead says:

    At lunch now, and so have a bit more time (but alas, not the respurces) to give an answer to the charge of not understanding the constitution…

    (Shrug) Oh, well;

    First, even absent a constitutional question, the added stipulations in the proposal can be seen as nothing but power grab, adding requirements of congressional buttkissing on the part of the executive branch which have not been there before, operationally speaking.

    Secondly, as to the constitutional questions, I will research this further, but I wonder a bit that you have such a problem with the concept of adding requirements over and above those imposed by the constitution is not be definition considered on it’s face to be extra-constitutional.

    Secondly, the consulting role imposed by the constitution, most certainly dind’t have the results in mind that James’ snarky response reveals… he’s quote right; All this does is give congress critters a chance to grandstand.

  10. Bithead says:

    At lunch now, and so have a bit more time (but alas, not the respurces) to give an answer to the charge of not understanding the constitution…

    (Shrug) Oh, well;

    First, even absent a constitutional question, the added stipulations in the proposal can be seen as nothing but power grab, adding requirements of congressional buttkissing on the part of the executive branch which have not been there before, operationally speaking.

    Secondly, as to the constitutional questions, I will research this further,(things get muddy when dealing with the existing war pwoers act) but I wonder a bit that you have such a problem with the concept of adding requirements over and above those imposed by the constitution is not be definition considered on it’s face to be extra-constitutional.

    Third, the consulting role imposed by the constitution, most certainly dind’t have the results in mind that James’ snarky response reveals… he’s quite right; All this does is give congress critters a chance to grandstand.

  11. Michael says:

    First, even absent a constitutional question, the added stipulations in the proposal can be seen as nothing but power grab, adding requirements of congressional buttkissing on the part of the executive branch which have not been there before, operationally speaking.

    Are my sarcasm detectors off today, or are do you actually believe what you’re writing?

    I wonder a bit that you have such a problem with the concept of adding requirements over and above those imposed by the constitution is not be definition considered on it’s face to be extra-constitutional.

    I somehow doubt that requiring Congressional approval before taking the nation to war would be “extra-constitutional”.

  12. Beldar says:

    I believe it’s still the case that no sitting president, of either party, has conceded the constitutionality of the existing War Powers Act.

  13. Dave Schuler says:

    I believe it’s still the case that no sitting president, of either party, has conceded the constitutionality of the existing War Powers Act.

    Unconstitutionality will never prove a deterrent to Congress’s passing a politically motivated bill.

  14. Bithead says:

    I somehow doubt that requiring Congressional approval before taking the nation to war would be “extra-constitutional”.

    When worded that way, no… but that’s not the specific issue, then, is it?

  15. Michael says:

    When worded that way, no… but that’s not the specific issue, then, is it?

    It’s not? Then what is the specific issue?

  16. Bithead says:

    Seems to me that there are parts of this proposal which add to that pre-existng constitutional requirement.

  17. teqjack says:

    A consolidated, bipartisan group might actually provide serious advice and gain the trust of the executive to make consultation more attractive.

    Like the ones that “consult” on judicial appointments?