Congress and the Next President Should Repeal the War Powers Act

I tend to be cynical about proposals advanced by bipartisan panels of the great and the good. But I'll make an exception for the National War Powers Commission sponsored by the Miller Center of Public Affairs at the University of Virginia. The commission was chaired by former Secretaries of State James Baker and Warren Christopher and included former Democratic members of Congress Lee Hamilton, John Marsh, and Abner Mikva and former Republican Sen. Slade Gorton (Marsh presumably counts as a Republican, since he served in the Ford White House and was secretary of the Army in the Reagan administration). Other members: Republicans Carla Hills, Edwin Meese, and Brent Scowcroft; Democrats Anne-Marie Slaughter and Strobe Talbott; and retired Adm. J. Paul Reason.

In its admirably brief and well-written report, the commission calls for repealing the War Powers Act of 1973 and replacing it with a War Powers Consultation Act that would require the president to consult with a new bipartisan, bicameral Joint Congressional Consultation Committee.

Why ditch the War Powers Act? Because it's probably unconstitutional and has not been recognized as good law by any administration since it was passed over Richard Nixon's veto in 1973. The War Powers Act purports to require the executive branch to cease any military action that Congress has not affirmatively sanctioned after 60 days of notification. This violates the Constitution's general provision that Congress can make a law only if it is passed by a majority in both houses and signed by the president or if it is passed by two-thirds majorities in both houses after being vetoed by the president. In practice, according to Baker and Christopher, the National Security Council has provided dozens of routine notifications to Congress, usually prepared by low-level officials. The War Powers Act has generally not promoted consultation with Congress, but its provisions have given opponents of military actions a basis for questioning their legitimacy.

Why not just repeal the War Powers Act? Presumably because Congress is not going to give away even a claim of power over the executive branch without getting something in compensation. The commission's proposed act would require consultation only in the case of "significant armed conflict" lasting more than one week, and not including actions taken to repel attacks or imminent attacks, limited reprisals, humanitarian missions, covert operations, training exercises, or "missions to protect or rescue American citizens or military or diplomatic personnel abroad." Thus, it would not have covered the attempted hostage rescue in Iran in 1980, the raid on Libya in retaliation for its killing of U.S. servicemen in 1986, the retaliation against Iraq for the attempted assassination of George H. W. Bush in 1993, or the missile strikes in Sudan in 1998.

In effect, the commission is proposing a good deal for both the executive and legislative branches. The executive branch would get rid of a statute that in practical terms is a nuisance and whose constitutionality it has never recognized. The legislative branch gets a new statute that promotes, though it can scarcely guarantee, consultation with Congress.

The War Powers Act was a hasty and ill-thought-out response to the use Lyndon Johnson made of the Gulf of Tonkin Resolution in 1964. In recent decades, presidents have sought explicit sanction for extended military actions—the rough equivalent of a declaration of war—in the Persian Gulf in 1991, in Afghanistan in 2001, and in Iraq in 2002. I suppose there's not a pressing need to repeal the War Powers Act and replace it with something that pushes presidents in the direction of consulting with Congress. But it's a good idea and something that the next Congress and the next president could do next year.