Scuttling the War Powers Act

BY TAYLOR MARSH

Warren Christopher and James Baker have recommended the dismantling of the
War Powers Act
of 1973. It’s original purpose was to keep the executive branch from going
to war without congressional input, formalizing decisions on war. Lyndon Johnson and Richard Nixon ticked off Congress so badly, which is basically what triggered it. How’d that work out?

Exactly. Nobody paid any attention to it, which is why Christopher and Baker are suggesting scuttling it for
something that at least attempts to give Congress back its teeth. Even the new title sounds more apt: War Powers Consultation Act of 2009.

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. Many have suggested that the war powers resolution be amended or replaced altogether. But proposals to do so haven’t gotten very far, typically because most have sided too heavily with either the president or Congress. Our proposed new law, the War Powers Consultation Act of 2009, does not pretend to resolve the underlying constitutional issues — only a constitutional amendment or a Supreme Court decision could do that. It would reserve the ability of both Congress and the president to assert their constitutional war powers. In drawing up the statute we focused on a common theme that almost all past proposals shared: the importance of meaningful consultation between the president and Congress before the nation is committed to war…. Put War Powers Back Where They Belong, By JAMES A. BAKER III and WARREN CHRISTOPHER

However, in order for anything to work Congress has actually got to have the
spine to stand up to the executive branch. It’s becoming increasingly clear
that the only thing Congress responds to is the threat of bad foreign policy
PR.

ABC’s
take on it:

The commission is calling on Congress to repeal the 1973 War Powers Act — key parts of which many scholars consider unconstitutional — and to replace it with a new statute providing that the president shall consult with Congress before deploying U.S. troops into combat operations lasting, or expected to last, more than a week. Congress would then have 30 days to approve or decline to approve military action — and declining a vote of approval would order the military action be ended. The War Powers Consultation Act of 2009 would create a 20-member Joint Congressional Consultation Committee which would include leaders of the House and Senate from both parties as well as the chair and ranking members of key House and Senate committees covering foreign affairs, armed services, intelligence, and appropriations. “The way for the president to get independent advice is to go to the Congress,” said former Rep. Lee Hamilton, D-Ind., a member of the commission. …

Contacting both nominees, ABC didn’t get anything definitive but it’s clear both candidates are listening closely.

McCain’s team:

“Discussions about the extent of Presidential constitutional powers are as old as the republic itself, as the debates between James Madison and Alexander Hamilton illustrated,” said Scheunemann. “Senator McCain has long held that any President should work cooperatively with Congress as much as possible. This is particularly important when it comes to the most difficult question facing a country: sending its men and women into harm’s way.” “The Baker Christopher war powers proposal is an interesting approach to this enduring issue,” added Scheunemann. “As President, Senator McCain would make consultations with Congress a priority, especially in the issues of war and peace.”

Obama’s team:

“Senator Obama commends this bipartisan study for advocating that the President consult Congress more closely on issues of critical national importance like the use of military force,” said Shapiro.

The War Powers Act of 1973 is a joke, because it’s been ignored. George W. Bush was the last straw. We need something
to replace it that much seems clear.