Redstate

Posted at 11:12pm on Jul. 8, 2008 Rethinking War Powers

By Pejman Yousefzadeh

The 1973 War Powers Act has been the object of much political and legal derision--especially given the widespread belief that the Act is unconstitutional as written. The political derision stems from the fact that Presidents have not invoked the Act and Congresses have done nothing to call for the Act's enforcement.

This state of affairs has prompted the creation of a bipartisan commission--the National War Powers Commission--tasked with the assignment to replace the War Powers Act with something that would be more workable. The Commission is chaired by former Secretaries of State James Baker and Warren Christopher. This Commission is not a creation of Congress the way the Iraq Study Group was, but rather a creation of the University of Virginia's Miller Center of Public Affairs (note the language on the homepage stating that "[t]he Miller Center impaneled the National War Powers Commission in February 2007."). Secretaries Baker and Christopher co-wrote an editorial that appeared in today's New York Times and which spells out how a new legislative design would function in governing the exercise of war powers by both Congress and the President:

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.

Read on . . .

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