September 1, 2008  

Power struggle

Who should declare war: the president or Congress?

When President Truman ordered U.S. troops to Korea in 1950, he was the first U.S. president who didn’t get authority from Congress before starting a war.

Truman’s unilateral decision set a precedent that presidents have followed ever since. Presidents have ordered bombing campaigns, peacemaking operations and full-scale wars without getting approval from Congress.

And Congress has let them.

Until Truman, “everyone knew for 160 years that only Congress can initiate war,” said Louis Fisher, a constitutional law expert for the law library in the Library of Congress.

Since Truman, presidents have sent troops to fight in Vietnam, Grenada, Panama, Haiti, Bosnia, Kosovo and Somalia without first obtaining authorization from Congress.

Lawmakers have acquiesced and paid the bills.

But there is renewed interest among some members of Congress and a number of legal scholars in reclaiming Congress’ constitutional power to declare war — or to block military operations by not declaring war.

“Congress has for too long abdicated its responsibility,” said Rep. Walter Jones, R-N.C., who is leading an effort to reassert Congress’ power by rewriting the War Powers Resolution of 1973. “Our Constitution states that, while the commander in chief has the power to conduct wars, only Congress has the power to declare war.”


After giving presidents essentially a free hand for more than 65 years, it’s time for Congress to reassume “its primary constitutional role of deciding when to use force abroad,” Jones said.

But wresting power away from presidents won’t be easy. Nor, perhaps, will be thrusting responsibility back on reluctant lawmakers. Jones proposes to do that with his Constitutional War Powers Resolution. Introduced in September 2007, it is intended to replace the 1973 War Powers Resolution. “I wish we did not need to rewrite the War Powers Resolution; I wish we just stuck to the Constitution and didn’t send troops to war without a declaration of war,” Jones said.

But that hasn’t happened since 1941. Meanwhile, the U.S. has fought in at least a dozen wars.

Jones’ legislation would prohibit the president from entering into wars without congressional consent — with three exceptions: To repel or retaliate for an attack on the U.S.; to repel an attack on U.S. troops; and to protect and evacuate U.S. citizens. And those operations would be limited to no more than 30 days unless Congress approves an extension.

Before sending U.S. troops into any conflict, Jones’ legislation requires the president to convene an “executive-legislative consultative group” that includes the president, senior executive branch officials and the six most senior leaders of Congress — the speaker of the House, the president pro tem of the Senate, and the majority and minority leaders of both houses. The intent is to force the president to justify to the top leaders in Congress why going to war is necessary, Jones said.

The current War Powers Resolution says that the president must “consult” with Congress, but it doesn’t say who must be consulted. Consulting with all 535 lawmakers is impractical, Jones said. Instead, presidents have satisfied the consulting requirement by drumming up war support among their political allies.

“I believe that if the president was required by law to consult with leadership of both houses to discuss his plans and justify his plans, then we would be going back somewhat to the Constitution,” Jones said.

Jones’ legislation also requires presidents to report to Congress in writing before the start of hostilities, spelling out justification for committing troops, information on the scope and duration of the operation, a cost estimate, a description of the forces and equipment to be used, an explanation of how the operation will affect U.S. diplomacy and detailed post-hostility scenarios.

When military forces have been committed under one of the three exceptions, the report must be made within 48 hours after the deployment.

Jones’ legislation would do “a lot to restore to the legislative branch the powers the Constitution delegates to them on declaring war,” said Cory Owens, spokesman for the Constitution Project, a think tank that focuses on constitutional issues. “It’s an excellent step in the right direction,” he said.

Oddly, Jones’ bill has not generated wide support among lawmakers. In the 10 months since it was introduced, the Constitutional War Powers Resolution has attracted just 11 co-sponsors. This despite repeated efforts by House and Senate Democrats to curtail the war-making power President Bush has assumed in the war in Iraq.

Sadly, “Congress doesn’t want the authority back,” Owens said. “Politically, Congress would love to not to have to deal with going to war. Unfortunately for them, when they take the oath to uphold the Constitution, that’s a responsibility they have to accept.”

The drafters of the Constitution purposefully assigned war powers to Congress to prevent the president from unilaterally wielding the power to go to war the way the European monarchs of the day did, he said.

The Bush administration has argued that as commander in chief, the president has ultimate control over the military and does not need congressional approval for military operations.

That’s not what the founding fathers intended, Fisher told a House subcommittee during a war powers hearing in April. A major reason for making the president commander in chief was to preserve civilian control over the military, he said. It ensures that “military commitments are not in the hands of admirals and generals,” he said. The founders intended for presidents to wage wars but only after Congress has declared them. Congress has been loath to do so.


“For many members, this is the only time they are ever called on to make what amounts to life-or-death decisions, and they can be uncomfortable with the responsibility,” said Stephen Rademaker, a former senior House and Senate staffer and a former assistant secretary of state. “Sometimes, rather than give a clear yes or a clear no, they look for a way to say maybe.”

For 35 years, the War Powers Resolution of 1973 has provided the way to say maybe. Passed in the dismal waning days of the Vietnam War, the 1973 resolution permits presidents to send troops to war, but it says they must be withdrawn in 60 days if Congress doesn’t authorize the war.

But the resolution has never worked.

“No president has ever curtailed a military operation because the 60-day clock was about to expire, and Congress has never seriously sought to enforce it,” Rademaker said. “It therefore serves in practice as a way of permitting a military operation to go forward, while reserving to Congress the right to disavow it should it go badly.”

Jones is not alone in trying to replace the 1973 resolution. A National War Powers Commission headed by former Secretaries of State Warren Christopher and James Baker urged Congress in July to repeal the 1973 resolution and replace it with the War Powers Consultation Act. “Consultation” is the key word here.

“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,” the commission wrote in a report on its work.

Citing polls, Christopher and Baker said, “Americans have long shared this desire for consultation. Yet such consultation has not always occurred.”

To promote consultation, the Christopher-Baker commission would create a new congressional committee — the Joint Congressional Consultation Committee. Members would include the majority and minority leaders of the House and Senate and the chairmen and ranking members from “key committees” — Intelligence, Armed Services, Foreign Affairs and Appropriations. The committee would have a permanent professional staff, and the staff would have greater access to U.S. intelligence than ever before, Christopher said during a July news conference.

The War Powers Consultation Act requires the president to consult with the committee before sending troops to combat operations that are expected to last longer than a week. If there is a reason the president must send troops into combat immediately, he must consult with the committee within three days, the act says. Once the committee has been consulted, Congress must vote within 30 days on a resolution to authorize the use of military force.

If Congress votes against authorizing the use of force, any member of Congress can introduce a resolution of disapproval. If that passes, the president can either sign it or veto it. If the president signs, the war is called off. If, as is more likely, the president vetoes the resolution of disapproval, Congress can try to override the veto, which requires two-thirds of the House and Senate to vote against the president. If Congress overrides the veto, the war ends. If the veto stands, the war goes on, but Congress can resort to other measures, such as cutting off war funds, the commission said in its report.

Owens said members of the Constitution Project are unimpressed.

In its attempts to correct deficiencies in the 1973 War Powers Resolution, the War Powers Commission made mistakes of its own, he said. Unlike the Jones bill, which requires congressional approval before troops can be sent to war, under the War Powers Consultation Act, as long as the president consults, he can send troops to war without receiving permission from Congress. If Congress objects, it must pass a resolution of disapproval and overcome a veto to halt the war — major hurdles.

The War Powers Consultation Act even “provides a number of exceptions to consulting Congress,” Owens said, including pre-emptive strikes and response to terrorist acts.

“The commission risks undermining the Constitution’s checks and balances by asking Congress to serve as the president’s consultant, rather than the other way around,” said Mickey Edwards, co-chairman of the Constitution Project’s War Powers Initiative.

“The United States Constitution makes it perfectly clear that the declaration of war is the exclusive responsibility of the people’s branch” of government, said Edwards, a former Republican House member from Oklahoma.

The framers of the Constitution “thought it essential that those who would do the fighting and dying should have some say through their representatives in the decision to go to war,” Edwards said.

While the War Powers Resolution of 1973 is ineffective, the War Powers Consultation Act would likely be no better. The consultation act “is more likely to be useful in reframing a debate” over war powers, “not as actual legislation,” Owens said.

Is a debate imminent? “I think so,” Jones said. “I think this Congress feels that it did not do its due diligence leading up to the war in Iraq.”

WILLIAM MATTHEWS is an AFJ contributing editor.