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A More Sensible Set of War Powers

The War Powers Resolution is well worth reforming.

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Several bills have been introduced that would reform the way America goes to war.

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Last week in the State of the Union address, President Barack Obama said the following about foreign threats:


We have to remain vigilant.

But I strongly believe our leadership and our security cannot depend on our outstanding military alone. As commander in chief, I have used force when needed to protect the American people, and I will never hesitate to do so as long as I hold this office. But I will not send our troops into harm's way unless it is truly necessary, nor will I allow our sons and daughters to be mired in open-ended conflicts. We must fight the battles… that need to be fought, not those that terrorists prefer from us -- large-scale deployments that drain our strength and may ultimately feed extremism.


His comments are particularly interesting in light of Congressional attention to issues of war powers and the 1973 War Powers Resolution.

[See a collection of political cartoons on defense spending.]

The conflict over war powers comes from the separation of powers enumerated in the Constitution. Under Article I, Section 8, the Congress is empowered to declare war, raise and support armies (to include a militia), to “provide and maintain a Navy” and to make rules govern and regulating these forces. But under Article II, Section 2 the president is the “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”

Historically this has led to a situation where the U.S. has used force abroad much more often than wars have been declared, with the president asserting the commander in chief clause to allow for maximum “energy in the executive” in dealing with foreign threats and challenges. (The Congressional Research Service, for instance, reports that Congress has declared war 11 times relating to five separate wars throughout the history of the country — with the Second World War being the last time a war was formally declared.) As former Congressman Paul McHale wrote recently, “Through a combination of evolving defense policies, spanning many years and multiple presidential administrations, the United States is now capable of going to war without the consent of the governed. The implications of that reality are deeply troubling for our democracy and ultimately our national character.”

But how did we get here? In the final days of American involvement in the Vietnam War, the Congress tried to reassert its will over a weakened executive. The War Powers Resolution required that the president:


In the absence of a declaration of war, in any case in which United States Armed Forces are introduced—

(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;

(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or

(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation;

the President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth—

(A) the circumstances necessitating the introduction of United States Armed Forces;

(B) the constitutional and legislative authority under which such introduction took place; and

(C) the estimated scope and duration of the hostilities or involvement.

This reporting would then start a 60 day clock for the use of troops abroad. An additional 30 days could be added to the clock, with Congressional consent, to allow for the removal of troops from the reported situation. The purpose of this was to limit the president’s freedom of action, but constitutional scholars such as Louis Fisher have argued convincingly that it has had the opposite effect. Furthermore, neither the executive nor legislative branches seemed to want to test this legislation in the courts for fear of permanently altering the balance of powers in regards to using force abroad.

[See a collection of political cartoons on Afghanistan.]

Congress seems willing to try to reassert itself today. Five separate bills have been introduced in the 113th Congress about repealing, amending or reforming the War Powers Resolution. The most talked about of these proposed bills is the War Powers Consultation Act of 2014 introduced by Sens. Tim Kaine, D-Va., and John McCain, R-Ariz.

Under this legislation, the War Powers Resolution would be repealed and would be replaced by the establishment of a Joint Congressional Consultation Committee, which would be regularly consulted with by the president on “significant matters of foreign policy and national security” and especially when U.S. troops would be engaged in “significant armed conflict," defined as “any conflict expressly authorized by Congress, or any combat operation involving members of the Armed Forces lasting more than a week or expected by the President to last more than a week." (The bill lays out several exceptions to the terms "significant armed conflict.)

In order to maintain operational surprise, however, the legislation would provide the president three calendar days after the introduction of forces to make a report to Congress. A joint resolution of approval would then be crafted no later than 30 days after the introduction of troops unless they were operating under a formal declaration of war or under a specific authorization of military force.

This seems eminently sensible. The War Powers Consultation Act would allow our presidents to respond to imminent threats quickly and with flexibility, while also allowing Congress the ability to assert itself earlier on the process when American blood and treasure are committed abroad. And as McHale also expressed in his opinion piece, consideration of this legislation will allow for much needed debate and thinking about these important matters.