International Development

FSI researchers consider international development from a variety of angles. They analyze ideas such as how public action and good governance are cornerstones of economic prosperity in Mexico and how investments in high school education will improve China’s economy.

They are looking at novel technological interventions to improve rural livelihoods, like the development implications of solar power-generated crop growing in Northern Benin.

FSI academics also assess which political processes yield better access to public services, particularly in developing countries. With a focus on health care, researchers have studied the political incentives to embrace UNICEF’s child survival efforts and how a well-run anti-alcohol policy in Russia affected mortality rates.

FSI’s work on international development also includes training the next generation of leaders through pre- and post-doctoral fellowships as well as the Draper Hills Summer Fellows Program.

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Dr. Alejandro Toledo, former president of Peru, describes his vision as “democracy that delivers.”

“My colleagues and I who have taken the challenge of public life as a vocation and a life commitment,” Toledo says, “cannot but feel concerned about the great challenges faced by our continent where half its population lives between poverty and misery and where inequalities and social exclusion are at their highest.” Toledo has spent the past academic year in residence at the Center on Democracy, Development, and the Rule of Law, applying theoretical rigor to a bold new plan for Latin America and also making a sweeping call to action. At the same time, as Distinguished Visiting Payne Lecturer for the Freeman Spogli Institute, Toledo has shared his vision and his plans for the future with the Stanford community in a three-part special Payne Lecture Series, titled “Can the Poor Afford Democracy? A Presidential Perspective.”

Forty percent of Latin Americans — 230 million people — are trying to survive on less than $2 a day, and 110 million live on less than $1 a day, Toledo is quick to point out. He also notes that income levels do not reflect the “drama of poverty”— things like infant mortality, malnutrition, lack of access to health care and education, and ethnically based social exclusion. Impoverished populations see corruption, exclusion, and economic inequality, and they begin to associate these things with democracy and become impatient with it. Toledo is calling for leaders to have the courage to invest in human development through nutrition, education, and microfinance programs and to make decisions that may not have short-term political benefits. “This is a moment for more leadership and less politics,” he said in January.

With the Global Center for Development and Democracy, the non-governmental organization that he founded, Toledo is organizing a new, broad-sweeping initiative to construct a social agenda for democracy in Latin America for the next 20 years. This Social Agenda for Democracy Initiative will identify specific and measurable goals to demonstrate that democracy is capable of “delivering concrete results to the poor.” To do this, Toledo says, the group of former Latin American presidents, democratic leaders, experts, and exponents of civil society that he is organizing will need to map out an agenda for both stimulating economic growth and reducing inequality and exclusion. Their agenda will be supported by parallel and ongoing efforts to promote and strengthen democratic institutions including judicial systems, freedom of speech, human rights, and the independence of all branches of government.

Toledo’s working group met for the first time on November 26, 2007, at the National Endowment of Democracy in Washington, D.C. The core team is made up of 12 former presidents, including Presidents Vicente Fox (Mexico), Fernando H. Cardoso (Brazil), Carlos Mesa (Bolivia), Ricardo Lagos (Chile), Cesar Gaviria (Colombia), Jose Maria Aznar (Spain), Rodrigo Carazo (Costa Rica), and Ricardo Maduro (Honduras). The group met again in Lima, Peru, on April 25, a meeting that Toledo is particularly excited about. “Our meeting in Lima has special significance for the initiative,” Toledo explains. “First, because the Latin American, Caribbean, and European Union Summit between 60 heads of state was held this year in Lima, just one month later, and second, because the theme of this year’s summit is ‘Poverty, Inequality, and Exclusion.’”

Which is the task that lies before Toledo and his colleagues.

One of the main aims of the Social Agenda for Democracy Initiative is to develop a social matrix to measure progress on key indicators such as economic growth, health, education, employment and salaries, poverty and income distribution, and access to technology. Several working group members reported on May 14 to the Latin American, Caribbean, and European Union Summit on the Social Agenda for Democracy Initiative and their progress in constructing this social matrix — giving the bold plan of this already super-charged group additional visibility and opportunity for capacity building. The group will meet two more times in 2008: in Bolivia this July and again in September in Sao Paulo, Brazil.

For Toledo, the link between democracy and social change is palpable — he is both the product of and an advocate for the transformative powers of these two processes. Democratically elected in 2001, Toledo was Peru’s first president of indigenous descent, having grown up in an impoverished and remote Andean village. “For 500 years, someone with my ethnic background was never accepted to be a candidate,” Toledo said in May, in his final Payne lecture. “I was a political intruder in the establishment of politics in Latin America and in Peru.”

In his five-year term as president, Toledo achieved 6 percent average annual growth, increased foreign direct investment by 50 percent, balanced the budget, and brought 25 percent of the population above the poverty line. He also initiated a program called Juntos, or “Together,” a system of conditional, direct cash transfers to female heads of the poorest households. In return for obtaining pre- and post-natal checkups, vaccinating their children, and making sure their children went to school, the women received $30 per month to invest in their economic self-sufficiency. The short-term solution provided by Juntos was initially criticized by the IMF but has been so successful that it is now being evaluated as a policy option by both the IMF and the World Bank and has been continued by the current government.

In his first Payne lecture, held in January, Toledo interwove firsthand observations with quantitative research to support his argument that a reduction in poverty and inequality does not necessarily follow economic growth. While he has “cautious optimism” that Latin America is poised to “make a substantial jump and take a prominent place in the world economy in the next 15 to 20 years,” he said that only an ambitious social agenda to reduce poverty and inequality will stimulate economic growth, strengthen democratic institutions, and consolidate democratic governance in the region.

Having analyzed the relationship between democratic reform, economic growth, and poverty, inequality, and social exclusion in Latin America, Toledo focused his second Payne lecture, in April, on some of the political dynamics in Peru leading up to his election to president. His multimedia presentation included footage of the mass protests that followed Alberto Fujimori’s controversial re-election to a third term in 2000 amid allegations of electoral fraud. Fujimori ultimately agreed to schedule a new election the following year and stepped down as a candidate.

In his third and final Payne lecture, on May 14, Toledo answered the question that served as the organizing principle for the series: Can the poor afford democracy? Yes, he said — but more importantly, “Democracy cannot afford to neglect the poor.”

Like Toledo, former president of Mexico and Social Agenda for Democracy colleague Vicente Fox sees positive economic and social growth for Latin America. He accepted Toledo’s invitation to visit the Stanford community and on March 5 spoke with intensity about Latin America’s prospects for both social welfare and economic well-being in the coming century. Mexico, which Goldman Sachs recently projected to be the world’s fifth largest economy by 2040, was emblematic of this electrifying future, he said. On the one hand, there is great promise for economic growth, stability, and entrepreneurship; and with this great promise, he was careful to note, comes great responsibility for the reduction of poverty and inequality through a “package of powerful social policies.”

Looking ahead, Fox hoped that Latin American democracy would not to be taken for granted; “it has to be nourished, it has to be taken care of, it has to be promoted.” But his outlook for Latin America is that this is a time for its countries to consolidate democracies and freedoms, consolidate economies, and promote new leadership. After years of military dictatorships, corruption, inefficiency, and poor development, “People decided to go for change,” Fox said, “and change is a magic word. It moves people to action.”

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Karen Eggleston
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The July/August issue of Health Affairs, the leading U.S.-based health policy journal, focuses on China and India. The special issue includes an article on China’s pharmaceutical policy by five contributors to Prescribing Cultures and Pharmaceutical Policy in the Asia-Pacific, a book forthcoming in 2009 from the Shorenstein Asia-Pacific Research Center series with Brookings Institution Press. Chapters on Korea and Japan by Soonman Kwon (Seoul National University) and Toshiaki Iizuka (Aoyama Gakuin University) also appear in Chinese translation in the journal Bijiao (Comparative Studies), along with an overview paper (“Pharmaceutical policy reforms to separate prescribing from dispensing in Japan and South Korea: Possible implications for China”) by Karen Eggleston, Asian Health Policy Program Director.

As Eggleston writes in the introduction to Prescribing Cultures, pharmaceuticals and their regulation play an increasingly important and often contentious role in the health care systems of the Asia Pacific.  For example, some economies such as China have extraordinarily high drug spending as a percentage of total health spending; India and a few others host thriving domestic pharmaceutical industries of global importance, while controversy surrounds patents, trade-related aspects of intellectual property (TRIPS), and pharmaceutical pricing within bilateral trade agreements (Australia-US, Republic of Korea-US); nations throughout the region struggle with appropriate regulation of drugs, from patents to evidence-based purchasing (e.g., Australia’s Pharmaceuticals Benefit Scheme) and direct-to-consumer advertising; deeply-rooted traditions of indigenous medicine are modernizing and integrating into broader health care systems; and policies to separate prescribing and dispensing re-write the professional roles of physicians and pharmacists, with modifications to accommodate cultural norms and strong economic interests. Effective prescribing and pharmaceutical use will be central to controlling infectious diseases, both old and emerging; protecting the global public good of antimicrobial effectiveness; and treating the growing burden of chronic disease in the Asia Pacific.

The forthcoming book will explore these issues in detail, through a multi-disciplinary lens. The first section of the book features chapters on pharmaceutical policy within seven selected health care systems of the Asia Pacific: South Korea, Japan, Thailand, Taiwan, Australia, India, and China. The second section focuses on the cross-cutting themes of prescribing cultures and access versus innovation. Taken as a whole, the contributions aim to provide an evidence base for policy while acknowledging the historical and cultural context that makes policies distinctive.

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Health Affairs 072008
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Karen Eggleston
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Clear evidence suggests the importance of health service provider payment incentives for achieving efficiency, equal access, and quality, including attention to primary, secondary, and tertiary prevention. “Pay for performance” may be on the cusp of significant expansion in Asia, and reform away from fee-for-service has been underway for several years in several economies. Yet despite the policy relevance, the evidence base for evaluating payment reforms in Asia is still very limited.

China in particular has been undertaking significant reforms to its health care system in both rural and urban areas. With the expansion of insurance coverage and need to resolve incentive problems like “supporting medical care through drug sales,” there is an urgent need for evaluating alternative ways of paying health service providers. Evidence from policy reforms in specific regions of China, as well as other economies of the Asia-Pacific, can provide valuable evidence to help inform policy decisions about how to align provider incentives with policy goals of quality care at reasonable cost.

To illuminate these questions, the Asia Health Policy Program and several collaborating institutions are planning to convene a conference on health care provider payment incentives on November 7-8, 2008 in Beijing. The conference will highlight and seek to distill “best-practice” lessons from rigorous and policy-relevant evaluations of recent reforms in China and elsewhere in the Asia Pacific.

The organizing committee – including health economists from Shorenstein APARC, Peking University, Tsinghua University, and Seoul National University – reviewed submissions in June 2008 and accepted sixteen. The conference papers cover payment issues in Korea, Japan, China, Taiwan, Thailand, Tajikistan, the Philippines, and the US, and the disciplines of economics, health services research/health policy, public health, medicine, and ethics. Topics include institutionalized informal payments; the impact of global budget policies on high-cost patients; public-private partnerships; public-sector physicians owning private pharmacies; evidence-informed case payment rates; payment and hospital quality; bonuses and physician satisfaction; physician prescription choice between brand-name and generic drugs; and differences in pharmaceutical utilization across insurance plans that pay providers differently (fee-for-service versus capitation).

Policymakers from China’s National Development and Reform Commission and Ministry of Health will also speak at the conference. Selected research papers will be published through the Shorenstein Asia-Pacific Research Center either in a special volume or in a special issue of an English-language health policy journal.

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While in London, Senior Research Scholar Rafiq Dossani spent time discussing the reasons behind India's continued rise and his recent book India Arriving: How This Economic Powerhouse is Redefining Global Business with CNBC's Europe Tonight host Guy Johnson.

While in London, Senior Research Scholar Rafiq Dossani spent time discussing the reasons behind India's continued rise and his recent book India Arriving: How This Economic Powerhouse is Redefining Global Business with CNBC's Europe Tonight host Guy Johnson. You can watch the interview here CNBC - Europe Tonight

 

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PESD Affiliate Mark Howells, along with Joe Aldy and Leo Schrattenholzer, have edited a special issue of the journal Energy Policy on the role of energy in Africa's social and economic development. The issue includes papers that examine an African interaction with the rest of the planet's liquid fuels market, the effect of various drivers on energy and technology transitions within Africa, as well as new quantitative models for projecting aspects of those energy transitions.
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Hisham Zerriffi
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Small scale power generation technologies (distributed generation) have the potential to significantly contribute to solving the rural electricity access problem in the developing world. This paper presents results from case studies in Brazil (part of a larger three country study) and shows that differences in business models and the influence of institutions are important factors for understanding success and failure in rural electrification and the contribution rural electrification can play in rural development. 

 

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Michael A. McFaul
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When George Shultz became Secretary of State in 1982, writes Michael McFaul in DemocracyArsenal.org, he began to challenge the Reagan administration's policy of disengagement, arguing that the United States needed to engage both the Soviet leaders but also Soviet society. Shultz's approach toward engaging the Soviets offers profound lessons for today's Iran debate: not just engagement, but also an expanded agenda that includes human rights and democracy.

In their column on National Review on June 24, 2008 called “10 Concerns about Barack Obama,” William Bennett and Seth Leibsohn, begin their list of attacks on Senator Obama by writing that “Barack Obama’s foreign policy is dangerous, naïve, and betrays a profound misreading of history.” In arguing against any engagement with Iran, William Bennett and Seth Leibsohn point out that “Ronald Reagan met with no Soviet leader during the entirely of his first term in office.”

This statement is factually correct. And there was most certainly a big debate within Reagan Administration about whether to talk with the leaders of the Evil Empire. However, Bennett and Leibsohn imply in their piece that this debate was only resolved after the Soviet Union met some preconditions to talks and changed internally, that is after, as they write, that Reagan “was assured Gorbachev was a different kind of leader – after Perestroika, not before.”

In fact, the debate about engaging the evil empire was resolved three years before Reagan met with Gorbachev. The debate and the resolution in favor of talking to the leaders of the evil empires is meticulously chronicled in George’s Shultz’s memoir, Turmoil and Triumph: Diplomacy , Power, and the Victory of the American Ideal (1993). Just the title of Chapter 25, "Realistic Reengagement with the Soviets," underscores how misleading the Bennett and Leibsohn rendition of history is.

When they first came to Washington, many foreign policy advisors within Reagan administration advocated the Bennett and Leibsohn position and did not want to have any contact with the Soviets, even though every American president since the recognition to the USSR in 1933 had met with their Soviet counterparts. When George Shultz became Secretary of State in 1982, he began to challenge this policy of disengagement, arguing that the United States needed to engage both the Soviet leaders but also Soviet society. As he writes in his memoirs about the start of the New Year in 1983, “I wanted to develop a strategy for a new start with the Soviet Union. I felt we had to try to turn the relationship around: away from confrontation and towards real problem solving.” (p. 159) Shultz is writing about his thinking two years before Gorbachev comes to power.

Shultz’s idea for a turn towards engagement met resistance in the Reagan administration. Again, from his memoirs: “I knew the president’s White House staff would oppose such engagement. There was lots of powerful opposition around town to any efforts to bridge the chasm separating Moscow and Washington.” After listing the opponents to direct negotiations, which included Secretary of Defense Caspar Weinberger and CIA head Bill Casey, Shultz affirmed that “I was determined not to hang back from engaging the Soviets because of fears that the ‘Soviet wins negotiations’.” (p. 159). Sound familiar? Instead the word, Iranians, for Soviets and you capture the essence of the debate today.

Shultz, as we all know, won this debate, convincing Reagan about the need to start talking directly to the Soviets (again well before Gorbachev came on to the scene). A subtitle of Chapter 12 of Shultz’s memoir is A President Ready to Engage. (p. 163). In early February 1983, Shultz even floats the idea of meeting directly with Soviet Ambassador Dobrynin for a private chat, to which Reagan responds, “Great”, and then adds “I don’t intend to engage in a detailed exchange with Dobrynin , but I do tell him that if Andropov is wiling to do business, so am I” (p. 164). (Remember Andropov died in 1983 and his successor, Chernenko, also did not serve long as the Soviet leader before dying in 1985. from 1983-1985, there was a real crisis of leadership inside the Soviet Union, a factor that contributed to the lack of direct talks at the highest levels). Speed forwarding again to today’s Iran debate, which presidential candidate sounds more like Reagan?

Shultz’s approach toward engaging the Soviets offers another profound lesson for today’s Iran debate. Shultz never let the negotiations focus just on arms control. That played o the Soviet’s strengths. Rather, he insisted on an expanded agenda that always included human rights and democracy. Again, from his memoirs, "We were determined not to allow the Soviets to focus our negotiations simply on matters of arms control. So we continuously adhered to a broad agenda: human rights, regional issues, arms control, and bilateral issues." (p.267). This same approach is needed for dealing with the Iranian regime today.

Finally, Shultz never saw negotiations or expanding contacts with Soviets and Americans as a concession to Moscow or a signal of legitimacy for the communist dictatorship. In the debate about opening consulates in both countries – a move that some hardliners at the time saw as a sign of weakness – Shultz firmly supported the idea as a change in the American national interest. As he quotes from a memorandum that he wrote in 1982, "I believe the next step on our part should be to propose the negotiation of a new U.S.-Soviet cultural agreement and the opening of U.S. and Soviet consulates in Kiev and New York...Both of these proposals will sound good to the Soviets, but are unambiguously in our interest when examined from a hard headed American viewpoint."(p. 275). Exactly the same could be said about Iran today.

Historical analogies can only go far. Many dimensions of U.S.-Iranians relations differ radically from Cold War relations between the U.S. and the Soviet Union. But when observers do roll them out, getting the facts right should be precondition to the substantive date about their relevance.

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Much existing literature champions renewables implementation on India’s Sagar Island as an unqualified rural electrification success story.  Photovoltaic (PV) and wind systems put in place by the West Bengal Renewable Energy Development Agency (WBREDA) have clearly brought benefits to many of the island’s residents.

 

The highly-touted community management system governing the projects has been successful at instilling local pride and overcoming the traditionally thorny problem of tariff non-collection.  At the same time, an on-the-ground look at the Sagar Island experience identifies some deeper liabilities of the business model guiding the renewables projects.  Two of the ostensible strengths of the Sagar Island implementation – the harmonious tariff collection associated with community management and the resources, competence, and assertiveness of WBREDA itself – can at the same time be considered weaknesses limiting the scope, sustainability, and replicability of the projects. 

This working paper considers these questions through a case study of a typical Sagar Island facility, the Mritunjoynagar PV power plant.  It finds that Mritunjoynagar’s inability to recoup its full operating and maintenance costs by providing appropriate incentives for profit maximization limits the expansion of the project and threatens its long-term sustainability, or at least the relevance of its business model in the absence of a highly-visible champion like WBREDA to ensure continued support.  For WBREDA and other agencies to sustain and replicate similar projects—and their attendant benefits—throughout India, they must adjust their economic model, as WBREDA is beginning to implicitly acknowledge in exploring a franchise model for future efforts.

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Much existing literature champions renewables implementation on India’s Sagar Island as an unqualified rural electrification success story.  Photovoltaic (PV) and wind systems put in place by the West Bengal Renewable Energy Development Agency (WBREDA) have clearly brought benefits to many of the island’s residents. 

The highly-touted community management system governing the projects has been successful at instilling local pride and overcoming the traditionally thorny problem of tariff non-collection.  At the same time, an on-the-ground look at the Sagar Island experience identifies some deeper liabilities of the business model guiding the renewables projects.  Two of the ostensible strengths of the Sagar Island implementation – the harmonious tariff collection associated with community management and the resources, competence, and assertiveness of WBREDA itself – can at the same time be considered weaknesses limiting the scope, sustainability, and replicability of the projects. 

This working paper considers these questions through a case study of a typical Sagar Island facility, the Mritunjoynagar PV power plant.  It finds that Mritunjoynagar’s inability to recoup its full operating and maintenance costs by providing appropriate incentives for profit maximization limits the expansion of the project and threatens its long-term sustainability, or at least the relevance of its business model in the absence of a highly-visible champion like WBREDA to ensure continued support.  For WBREDA and other agencies to sustain and replicate similar projects—and their attendant benefits—throughout India, they must adjust their economic model, as WBREDA is beginning to implicitly acknowledge in exploring a franchise model for future efforts.

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Program on Energy and Sustainable Development Working Paper #77
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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:

  • First, that our proposal be practical, fair, and realistic. It must have a reasonable chance of support from both the President and Congress. That requires constructing a proposal that avoids clearly favoring one branch over the other, and leaves no room for the Executive or Legislative Branch justifiably to claim that our proposal unconstitutionally infringes on itspowers.
  • Second, that our proposal maximize the likelihood that the President and Congress productively consult with each other on the exercise of war pow-ers. Both branches possess unique competencies and bases of support, and the country operates most effectively when these two branches of govern-ment communicate in a timely fashion and reach as much agreement aspossible about taking on the heavy burdens associated with war.
  • Third, that our proposal should not recommend reform measures that will be subject to widespread constitutional criticism. It is mainly for this reason that our proposal does not explicitly define a role for the courts,which have been protective of defining their own jurisdiction in this area.

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.

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Policy Briefs
Publication Date
Journal Publisher
National War Powers Commission
Authors
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