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Chatter in the SystemThe New War Powers Commission suggests bold new "consultation."

By Dahlia LithwickPosted Saturday, July 12, 2008, at 7:28 AM ET

James Baker and Warren Christopher. Click image to expand.What can you do with a Congress that does nothing? A blue-ribbon commission headed by former Secretaries of State James Baker and Warren Christopher suggested last week that the best solution to the problem of an overreaching wartime executive and a supine wartime Congress is "more meaningful consultation between the president and Congress on matters of war." In a 72-page bipartisan proposal to overhaul the 1973 War Powers Act, they essentially demanded that Congress grow a spine. As this is a surgical, rather than legislative, proposition, it is unclear whether the proposed reforms can really be counted on to get the job done.

In 1973, Congress passed the War Powers Act after Presidents Lyndon Johnson and Richard Nixon went to war in Vietnam without a congressional declaration. The law gave the president 90 days after introducing troops into hostilities before congressional approval was needed. In the intervening years, the law has had all the legal force of a doily. It has never been formally invoked, presidents of both parties have occasionally declared it unconstitutional, and Congress has refused to force the issue. Various White Houses (but most especially the current one) have filled that breach with an ever more expansive reading of Article II, Section 2 of the Constitution. The text provides that "[t]he president shall be Commander-in-Chief of the Army and Navy of the United States." Many in the executive read that clause to mean that Congress is a constitutional bathmat.

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Now, technically Congress is not a bathmat. Indeed the constitutional grant of war powers to Congress is most generous, including the power "to regulate Commerce with foreign Nations," "raise and support Armies," "provide for the common Defense," and even to, um, "declare War." But Baker and Christopher began their constitutional analysis from the premise that "the Constitution provides both the President and Congress with explicit grants of War Powers" and went on to divvy them up from there. And that was when the act of giving away the farm first began: Consultation between the branches became the solution, as opposed to executive deference to the Congress.

Now to be clear, in some ways the proposed changes are better than nothing. New fixes would require the president to consult with Congress before deploying troops into "significant armed conflict" (i.e., lasting more than a week) and require consultation in covert operations or emergency circumstances after three days. The commission recommends a new joint congressional committee, featuring leaders of both houses and a permanent bipartisan staff. But the commission mysteriously exempts vast classes of actions from the category of "significant armed conflict," including such ambiguous presidential undertakings as "acts to prevent criminal activity abroad," and "missions to protect or rescue American citizens or military or diplomatic personnel abroad."

Presumably, the executive branch will be given the authority to define these exceptions into huge gaping acts of "insignificant" armed conflict. The proposed reforms all but disregard the Framers' concern that Congress—not the president—be given the ultimate authority over matters of war and peace. As James Madison wrote to Thomas Jefferson, "The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the Legislature."

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Dahlia Lithwick is a Slate senior editor.
Photograph of James Baker and Warren Christopher by Karen Bleier/AFP/Getty Images.
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