When I clicked on a NYT op-ed by James Baker and Warren Christopher titled, “Put War Powers Back Where They Belong”, I expected to read something to affirm my own views about war powers – that it is only the power of the Congress to start a war. Instead, Christopher and Baker propose a new law to replace the unconstitutional 1973 War Powers Resolution. Their proposal bows to presidential power and ignores the Constitution, providing little improvement over the 1973 resolution. They write,
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.
Our proposed statute would provide that the president must consult with Congress before ordering a “significant armed conflict” — defined as combat operations that last or are expected to last more than a week. To provide more clarity than the 1973 War Powers Resolution, our statute also defines what types of hostilities would not be considered significant armed conflicts — for example, training exercises, covert operations or missions to protect and rescue Americans abroad. If secrecy or other circumstances precluded prior consultation, then consultation — not just notification — would need to be undertaken within three days.
To guarantee that the president consults with a cross section of Congress, the act would create a joint Congressional committee made up of the leaders of the House and the Senate as well as the chairmen and ranking members of key committees. These are the members of Congress with whom the president would need to personally consult. Almost as important, the act would establish a permanent, bipartisan staff with access to all relevant intelligence and national-security information.
Christopher and Baker’s underlying assumption is flawed. This proposal is predicated on the idea that both the President and the Congress have the power to make war. Let’s consider that pesky document, the Constitution. Consider what the Framers wrote concerning the war powers of the Legislature:
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
Now let’s compare these duties to the Framers’ conception of Executive war power:
The President shall be 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 (emphasis added).
In other words, the President does not have the power to start a war or use the military in any way unless specifically authorized by the US Congress with a declaration of war. Every President since Truman has used the military unconstitutionally, but that does not mean that the United States should consider adopting a law that aims to abrogate the Constitution. There is no wiggle room in the Constitution – not for covert ops or even the “emergencies”. The Constitution was made not only for the everyday but for emergencies as well. This may surprise some people in this post-9/11 United States. If matters are that pressing, the President can ask Congress to declare war, otherwise any use of the military is illegal. The idea that Congressional consultation must be mandated by this proposed statute is indicative of the warped view of war powers that now prevails.
I would be remiss if I blamed this muddled view of war powers solely on the increasing executive power since WWI. It is just as much the fault of the Congress who eagerly embraces the idea that they can get away without going on the record concerning a declaration of war. Their political expediency has cost as many lives as the Presidential “wars”. If this Iraq “war” had actually been declared, the equivocation that we have seen from people like Hillary Clinton about not actually voting to use force would not be possible.
Imagine how different our history would be if Congress and the President had actually abided by the Constitution. The debacles in Iraq and Vietnam could have been avoided. Perhaps the current hostilities with Iran could have been avoided likewise. The Framers had it right.