Congress Needs to Reassert Its War Powers

Posted March 16, 2009 at 4:29pm

Over the past 60 years, Congress has been unwilling or unable to counter a president who intends to go to war without its consent. Starting with the Korean War, presidents have taken the country into armed conflict against the express language in the Constitution that gives Congress the power to declare war.

Certainly there has been some pushback to this executive power grab, but for the most part Congress has failed to regain control over the war power. Recently, the House Foreign Affairs Committee held a hearing to consider recommendations made by the National War Powers Commission.

Headed by Warren Christopher, James Baker and Lee Hamilton, the commission proposed the creation of a bipartisan Joint Congressional Consultation Committee that would consult with the president before he deploys U.S. troops in an armed conflict. Within 30 days, Congress would vote on approving the president’s action.

At first blush, this proposal might seem like a useful way for Congress to reinsert itself. However, the plan provides no real change.

At the hearing, Foreign Affairs Chairman Howard Berman (D-Calif.) admitted that the president could simply veto a Congressional resolution opposing an armed conflict. In the end, the entire process is a waste unless two-thirds of Congress is willing to counter the president and override his veto. What this means is that the president can initiate and continue a war provided he has one-third plus one in either chamber of Congress.

What is the use of the proposal then? It does nothing to advance the understanding that Congress controls the war power. Even Berman was not sure if the recommendations would “balance the authorities between the executive and legislative branches.— You think? The proposal merely rearranges the deck chairs on a sinking ship.

Some comments by the committee members border on comical — not what we should expect from such a distinguished group. Christopher claimed the proposed changes are “a reflection of the balance that we have sought to strike.—

The Constitution does not suggest the type of balance Christopher and the other commissioners envision. Instead, it clearly reads that Congress must declare war. That is the constitutional default position, not some power-sharing arrangement where the president effectively decides if and when he will engage in a military action.

There should be no need to say — as Christopher does — that the goal of Congress is to merely have “a more significant seat at the table when our nation is deciding whether or not to go to war.— The Constitution did not grant Congress the right to declare war to have it stripped away by the executive branch.

What the commission has done is twist the constitutionally mandated governing framework so that now the president is at the center of the war power debate and a few Members of Congress are just a “vital resource … in his decision making process.— It is strange that two former secretaries of State and a past chairman of the House Foreign Affairs Committee can get the Constitution so wrong.

Baker tries another justification for the current compromise. The proposal promotes, in his words, “meaningful discussion between the president and Congress— and “does not limit or prejudice either the executive or legislative branches’ rights or ability to assert their respective constitutional war powers.—

The problem is that none of what Baker suggests matters. The Constitution does not require “meaningful discussion— nor does it give to each branch equal claim to the war power. Those are secondary concerns to the primary issue of the president recognizing that he must go before Congress if he wants to go to war.

The commission is focusing on the wrong issues and offering a flawed solution. The words “consult— and “balance— are meaningless. All a president has to do to satisfy the proposal’s consultation requirement is to notify a committee consisting of Congressional leaders that he intends to go to war.

This isn’t a democratic solution nor is it the one envisioned by the framers. To hold discussions with only a select committee of Congress (roughly 20 House and Senate Members) leaves out a substantial majority of Congress. Every Member of Congress has an equal right to decide if the country should go to war.

The Constitution clearly spells out another relationship where a president doesn’t just inform a few Members of Congress but, instead, asks permission from the entire body to go to war. Congress, not some independent commission, must assert its constitutional powers when it matters. Only by forcefully standing up against a president when the question of war is at hand will Congress regain its lost power.

Mitchel Sollenberger is an assistant professor of political science at the University of Michigan-Dearborn.