What Congress should do about the war in Afghanistan.

The law, lawyers, and the court.
Dec. 9 2009 5:48 PM

What Will Congress Do About Afghanistan?

Lawmakers should set new rules now for asserting their war powers later.

(Continued from Page 1)

But it is a mistake for Obama to continue down the path of unilateral decision-making blazed by President Bush. This will only undermine the democratic legitimacy of the entire effort. Congress can and should design a way to participate constructively in these crucial decisions. It should repeal the open-ended 2001 resolution and authorize Obama's 18-month surge through a new mechanism for ensuring the ongoing democratic legitimacy of limited wars.

Under the reform we envision, the House and Senate would change their rules for authorizing and funding wars. The new rules should state that any authorization of military force will specify the term during which it may lawfully continue before triggering further congressional review. The choice of the expiration date is entirely up to the House and Senate—it could be a year, or two, or 10. Or Congress could explicitly authorize an unlimited engagement. But if Congress's authorization is silent on the matter, a two-year period would be presumed. After that, the war-making authorization would expire unless Congress extended it. The president could ask to continue the limited war, but Congress would have to expressly agree. The House and Senate should back up the time limit by passing procedural rules that prohibit all future war appropriations after the deadline, except for money needed to wind down the mission over one year.


This structure would require presidents to be honest with Congress and the American people when asking them to commit troops abroad. If a mission will realistically take a decade, the president and his advisers will have to say so or return to Congress every two years for approval. And if they get it wrong about how long a war will take, they will also have to go back to Congress and explain how long we should continue the fight.

Our proposed reforms would not infringe on the president's constitutional role as commander in chief. Since the earliest days of the republic, the Supreme Court has established that Congress has the constitutional power to limit a war's "nature and extent." If Congress authorizes an invasion of Iraq, the commander in chief can't choose to invade Iran instead; nor can he continue the fight for 10 years if Congress has allowed only 10 months. Our proposal falls easily within this centuries-old understanding of congressional power.

It is also feasible. The Constitution gives each House "the power to determine its rules of proceeding." This means that either the Senate or the House can immediately change its rules on war authorization and funding to assert control over limited wars. The president might not like it, but he cannot veto changes in the way Congress does business. At the same time, skeptical Democrats would find it much easier to support the president's surge if they could guarantee effective oversight over the next phase of the war effort. That's good for him, good for the American people, and good for democratic control over limited wars in the future. A triple win.

Bruce Ackerman and Oona Hathaway are professors of law at Yale.


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