National War Powers Commission
July 8, 2008
The Commission convened regularly over the past year in Washington, D.C. as well as at our partnering institutions: the University of Virginia, Rice University, and Stanford University. In preparation for these meetings and during our deliberations, we interviewed scores of witnesses from all political perspectives and professional vantage points, and we greatly thank them for their time. We also drew on the collective experiences of the Commission and its advisors in government, the armed forces, private enterprise, the law, the press, and academia. Finally, we reviewed and studied much of the law, history, and other background literature on this subject. The Commission's intent was not to criticize or praise individual Presidents or Congresses for how they exercised their respective war powers. Instead, our aim was to issue a report that should be relied upon by future leaders and furnish them practical ways to proceed in the future. The result of our efforts is the report that follows, which we hope will persuade the next President and Congress to repeal the War Powers Resolution of 1973 and enact in its place the War Powers Consultation Act of 2009.
We urge that in the first 100 days of the next presidential Administration,the President and Congress work jointly to enact the War Powers Consultation Act of 2009 to replace the impractical and ineffective War Powers Resolution of 1973. The Act we propose places its focus on ensuring that Congress has an opportunity to consult meaningfully with the President about significant armed conflicts and that Congress expresses its views. We believe this new Act represents not only sound public policy, but a pragmatic approach that both the next President and Congress can and should endorse.
The need for reform stems from the gravity and uncertainty posed by war powers questions. Few would dispute that the most important decisions our leaders make involve war. Yet after more than 200 years of constitutional his-tory, what powers the respective branches of government possess in making such decisions is still heavily debated. The Constitution provides both the President and Congress with explicit grants of war powers, as well as a host of arguments for implied powers. How broadly or how narrowly to construe these powers is a matter of ongoing debate. Indeed, the Constitution’s framers disputed these very issues in the years following the Constitution’s ratification, expressing contrary views about the respective powers of the President,as “Commander in Chief,” and Congress, which the Constitution grants the power “To declare War.”
Over the years, public officials, academics, and experts empaneled on com-missions much like this one have expressed a wide range of views on how the war powers are allocated — or could best be allocated — among the branches of government. One topic on which a broad consensus does exist is that the War Powers Resolution of 1973 does not provide a solution because it is at least in part unconstitutional and in any event has not worked as intended.
Historical practice provides no decisive guide. One can point to examples of Presidents and Congresses exercising various powers, but it is hard to find a“golden age” or an unbroken line of precedent in which all agree the Executive and Legislative Branches exercised their war powers in a clear, consistent, and agreed-upon way.
Finally, the courts have not settled many of the open constitutional questions. Despite opportunities to intervene in several inter-branch disputes,courts frequently decline to answer the broader questions these war powers cases raise, and seem willing to decide only those cases in which litigants ask them to protect individual liberties and property rights affected by the conduct of a particular war.
Unsurprisingly, this uncertainty about war powers has precipitated a number of calls for reform and yielded a variety of proposals over the years. These proposals have largely been rejected or ignored, in many cases because they came down squarely on the side of one camp’s view of the law and dismissed the other.
However, one common theme runs through most of these efforts at reform:the importance of getting the President and Congress to consult meaning-fully and deliberate before committing the nation to war. Gallup polling datathroughout the past half century shows that Americans have long shared thisdesire for consultation. Yet, such consultation has not always occurred.
No clear mechanism or requirement exists today for the President andCongress to consult. The War Powers Resolution of 1973 contains only vague consultation requirements. Instead, it relies on reporting requirements that,if triggered, begin the clock running for Congress to approve the particulararmed conflict. By the terms of the 1973 Resolution, however, Congress neednot act to disapprove the conflict; the cessation of all hostilities is required in 60 to 90 days merely if Congress fails to act. Many have criticized this aspect ofthe Resolution as unwise and unconstitutional, and no President in the past 35years has filed a report “pursuant” to these triggering provisions.
This is not healthy. It does not promote the rule of law. It does not send theright message to our troops or to the public. And it does not encourage dia-logue or cooperation between the two branches.
In our efforts to address this set of problems, we have been guided by three principles:
Consistent with these principles, we propose the passage of the War Powers Consultation Act of 2009. The stated purpose of the Act is to codify the norm ofconsultation and “describe a constructive and practical way in which the judgment of both the President and Congress can be brought to bear when deciding whether the United States should engage in significant armed conflict."
”The Act requires such consultation before Congress declares or authorizes war or the country engages in combat operations lasting, or expected tolast, more than one week (“significant armed conflict”).
There is an “exigentcircumstances” carve-out that allows for consultation within three days afterthe beginning of combat operations. In cases of lesser conflicts — e.g., limitedactions to defend U.S. embassies abroad, reprisals against terrorist groups, andcovert operations — such advance consultation is not required, but is strongly encouraged.
Under the Act, once Congress has been consulted regarding a significant armed conflict, it too has obligations. Unless it declares war or otherwise expressly authorizes the conflict, it must hold a vote on a concurrent resolution within 30 days calling for its approval. If the concurrent resolution is approved,there can be little question that both the President and Congress have endorsed the new armed conflict. In an effort to avoid or mitigate the divisiveness that commonly occurs in the time it takes to execute the military campaign, the Act imposes an ongoing duty on the President and Congress regularly to consult for the duration of the conflict that has been approved.
If, instead, the concurrent resolution of approval is defeated in either House,any member of Congress may propose a joint resolution of disapproval. Like the concurrent resolution of approval, this joint resolution of disapproval shall be deemed highly privileged and must be voted on in a defined number of days. If such a resolution of disapproval is passed, Congress has several options. If both Houses of Congress ratify the joint resolution of disapproval and the President signs it or Congress overrides his veto, the joint resolution of disapproval will have the force of law. If Congress cannot muster the votes to overcome a veto, it may take lesser measures. Relying on its inherent rule making powers, Congress may make internal rules providing, for example, that any bill appropriating new funds for all or part of the armed conflict would be out of order.
In our opinion, the Act’s requirements do not materially increase the bur-dens on either branch, since Presidents have often sought and received approval or authorization from Congress before engaging in significant armed conflict. Under the Act, moreover, both the President and the American people get some-thing from Congress — its position, based on deliberation and consideration, as to whether it supports or opposes a certain military campaign. If Congress fails to act, it can hardly complain about the war effort when this clear mechanism for acting was squarely in place. If Congress disapproves the war, the disapproval is a political reality the President must confront, and Congress can press to make its disapproval binding law or use its internal rule-making capacity or its power of the purse to act on its disapproval.
We recognize the Act we propose may not be one that satisfies all Presidents or all Congresses in every circumstance. On the President’s side of the ledger,however, the statute generally should be attractive because it involves Congress only in “significant armed conflict,” not minor engagements. Moreover, it reverses the presumption that inaction by Congress means that Congress has disapproved of a military campaign and that the President is acting lawlessly if he proceeds with the conflict. On the congressional side of the ledger, the Act gives the Legislative Branch more by way of meaningful consultation and information. It also provides Congress a clear and simple mechanism by which to approve or disapprove a military campaign, and does so in a way that seeks to avoid the constitutional infirmities that plague the War Powers Resolution of 1973. Altogether, the Act works to gives Congress a seat at the table; it gives the President the benefit of Congress’s counsel; and it provides a mechanism for the President and the public to know Congress’s views before or as a military campaign begins. History suggests that building broad-based support fora military campaign — from both branches of government and the public — is often vital to success.
To enable such consultation most profitably to occur, our proposed Act establishes a Joint Congressional Consultation Committee, consisting of the majority and minority leaders of both Houses of Congress, as well as the chair-men and ranking members of key committees. We believe that if the President and Committee meet regularly, much of the distrust and tension that at times can characterize inter-branch relationships can be dissipated and overcome.In order that Congress and the Committee possess the competence to provide meaningful advice, the Act both requires the President to provide the Committee with certain reports and establishes a permanent, bipartisan congressional staff to facilitate its work. Given these resources, however, our proposed Act limits the incentives for Congress to act by inaction — which is exactly the course of conduct that the default rules in the War Powers Resolution of 1973 often promoted.
To be clear, however, in urging the passage of War Powers Consultation Act of 2009, we do not intend to strip either political branch of government of the constitutional arguments it may make about the scope of its power. As the Act itself makes plain, it “is not meant to define, circumscribe, or enhance the constitutional war powers of either the Executive or Legislative Branches of government, and neither branch by supporting or complying with this Act shall in anyway limit or prejudice its right or ability to assert its constitutional war powers or its right or ability to question or challenge the constitutional war powers of the other branch."
In sum, the nation benefits when the President and Congress consult frequently and meaningfully regarding war and matters of national security. While no statute can guarantee the President and Congress work together productively, the Act we propose provides a needed legal framework that encourages such consultation and affords the political branches a way to operate in this area that is practical, constructive, fair, and conducive to the most judicious and effective government policy and action.