War Powers Consultation Act

Slate's blog on legal issues.
July 10 2008 12:08 AM

War Powers Consultation Act

Suppose you think that Congress should have more say over war-making, as James Baker, William Christopher, and their bipartisan commission do , and the president less.  Would your new War Powers Consultation Act do this?

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.

Congress would have obligations, too. Unless it declared war or otherwise expressly authorized a conflict, it would have to vote within 30 days on a resolution of approval. If the resolution of approval was defeated in either House, any member of Congress could propose a resolution of disapproval. Such a resolution would have the force of law, however, only if it were passed by both houses and signed by the president or the president's veto were overridden. If the resolution of disapproval did not survive the president's veto, Congress could express its opposition by, for example, using its internal rules to block future spending on the conflict.

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It won't work, even in the unlikely event that a president would sign this bill, or Congress overrode a veto.  Presidents won't consult; they'll inform, as they always have.  If Congress, or members of Congress, try to persuade a court to compel the president to consult, the court will refuse, as courts always have, in such interbranch spats.  If a member of Congress proposes a resolution of disapproval, it won't obtain the 2/3 vote necessary to overcome the president's inevitable veto, and even if it does, the president will ignore the resolution, as presidents always have.  Congress could express its opposition by blocking future spending, but Congress has always had this option, and almost never used it.  As for the permanent committee, the problem has never been that the president doesn't know whom to consult; it's that his judgment and Congress's is different, and Congress has no politically viable tools for preventing the president from taking us to war.

The War Powers Resolution, which this new bill is to supplant, didn't fail because it was unconstitutional.  It failed because, over the years, the president has obtained the power to make war.  That won't change until the public decides that it won't allow one person to have this power.  Only a disaster would cause the public to make such a decision.  Is Iraq such a disaster?  No; Congress authorized that war, so even if the War Powers Consultation Act had been on the books when that war began, it wouldn't have made a bit of difference.

UPDATE: see Timothy Noah's discussion here .  Noah says that Congress wouldn't take the power even if given to it.  Maybe that's true, or often true, but there have been some cases -- Clinton's use of force in Kosovo comes to mind -- where Congress stepped to the plate, bravely made its disapproval known on the record for all to see, and -- was ignored.

Eric Posner, a professor at the University of Chicago Law School, is author of The Twilight of International Human Rights Law. Follow him on Twitter.

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