When I recently asked whose power is the war power, it was not intended to be a trick question. But for the Founders in framing the Constitution, it was a tricky issue to tackle.
They concluded the two principal branches should share the war power. Congress was designated as the branch to declare war and make rules for the regulation of the armed forces. The president would be the commander-in-chief when called into the actual service of the United States. The Framers did not want either branch to monopolize war making and envisioned them checking each other against the excessive use of force abroad.
The late 20th century complicated that vision with the onset of the Cold War and multilateral treaties like NATO committing us to coming to the assistance of our treaty allies. With the growth of terrorist organizations around the world, our military footprint became larger and challenged Congress on how best to deploy our troops to respond effectively.
In the midst of the divisive Vietnam War, Congress sought to modernize and strengthen its check on the imperial presidency by enacting the War Powers Resolution of 1973 over President Richard Nixon’s veto. The resolution directed presidents to terminate any military hostilities after 60 days in the absence of a specific congressional authorization to declare war. Congress could terminate a commitment sooner by passing a concurrent resolution, not requiring a presidential signature. It could also extend a military action by enacting a joint resolution known as an authorization for the use of military force.
Presidents ever since Nixon have declared the law an unconstitutional intrusion on the president’s authority as commander-in-chief. Meanwhile, debates have raged as to how to make the War Powers Resolution more broadly acceptable and workable.
One of those efforts was a privately funded National War Powers Commission founded in 2007 by the Miller Center of Public Affairs at the University of Virginia, in partnership with law schools or institutes at Rice, Stanford and William and Mary. The 12-member panel, chaired by former Secretaries of State James A. Baker III and Warren Christopher met seven times over 13 months and heard from over 40 witnesses.
In its final report, unveiled in July 2008, it recommended abolishing the War Powers Resolution and replacing it with the War Powers Consultation Act of 2009, and creating in Congress a 20-member joint committee on congressional consultation. The House Speaker and Senate majority leader would alternate as chairs. It would be further comprised of the House and Senate minority leaders, and the chairs and ranking members of key committees: Appropriations, Armed Services, Foreign Affairs and Foreign Relations, and Intelligence.
The joint committee would be charged with reviewing, in closed session, a classified report from the president on any proposed commitment of troops to hostilities for more than a week, and, after closed deliberations, recommending to the two chambers either for or against the requested military commitment to hostilities.
Under their proposal, if within 30 days after the conflict begins a concurrent resolution approving the commitment is rejected by either house, a joint resolution opposing the president’s action is privileged. If passed, the usual two-thirds vote of both houses would be required to override the president’s anticipated veto.
Sen. Tim Kaine (D-Va.) introduced the commission’s proposed War Powers Consultation Act in 2014 along with co-sponsors Sens. John McCain (R-Ariz.) and Angus King (I-Maine). The bill received no further action or co-sponsors. It lacked appeal on the Hill because it was obviously tilted toward the president. That should not be surprising since six of the 12 commission members were former executive branch officials and only three were former members of Congress. The other three were academics.
As we have relearned recently, members are reluctant to go against presidents of their own party, and minority party opposition, while expected, seldom has legs.
Presidents since Nixon have uniformly ignored or denounced the War Powers Resolution except for its periodic reporting requirements to Congress. Those reports, if taken more seriously by both branches, can be the building blocks for deeper consultation, deliberations and debates in Congress and the broader American public over how to end U.S. involvement in hostilities. The War Powers Resolution may be all but obsolete, but it can still provide some basis for hope in the future bicameral cooperation and agreements.
Don Wolfensberger is a 28-year congressional staff veteran culminating as chief of staff of the House Rules Committee in 1995. He is author of, “Congress and the People: Deliberative Democracy on Trial” (2000), and, “Changing Cultures in Congress: From Fair Play to Power Plays” (2018).
