Congress and the War Power: Constitutional Anchor or Anachronism?
by Lauren Crowley
Whose power is the war power in this modern age--Congress or the President? Has Congress abdicated to the president its constitutional powers to initiate wars and to commit American troops to controversial, volatile and potentially violent situations? Does Congress prefer to defer to the President rather than risk political repercussions? These are some of the questions that precipitated this Congress Project seminar held at the Wilson Center on October 15, 2001.
In posing these questions we run up against two constitutional interpretations that are at odds with each other: The strict constructionist schools holds that only the Congress may initiate the hostilities through a declaration of war or other legislative enactment, unless, of course, the U.S. is attacked first. The pragmatic school, on the other hand, holds that the nature of the modern world is such that only the President is in a position to make that determination in a timely and effective manner.
Mara Rudman, vice president and general counsel of the Cohen Group, declared herself a pragmatist who still believes in the War Powers Resolution (WPR). According to Rudman, the WPR works because it increases opportunities for a partnership between the President and Congress. As evidence of the WPR in effect, she pointed out that during troop commitments in Somalia, Bosnia, and Haiti, there were a series of votes in the Congress occasioned by WPR. Three were war powers notifications by the President "consistent" with the requirements of WPR.
War powers language was also included in the recent Sept. 20 "use of force" resolution passed by Congress on anti-terrorism. In fact, the final resolution that was passed by Congress was not the same as the original request by the President. Congress narrowed the definition of when force could be used. This is another example of the Congress and the President working together on the resolution.
She concedes that there were not authorizations in other instances which were passed by both Houses of Congress. Nevertheless, in many instances, the votes that did take place helped to make the White House aware of the need to consult with Congress and to pay attention to its concerns.
On the question of WPR reform, Rudman said that while it clearly could be improved, she recommends against revising WPR at this time because there is no consensus over how to reform it. Congress should follow the first dictum of the Hippocratic oath: first, do no harm. Finally, she disagrees with one recommendation of the Hart-Rudman Commission---the elimination of the legislative (affairs) position at the NSC. To Rudman, this would be a mistake since sometimes that person is the only one who is sensitive to Congressional concerns and the requirements of WPR. NSC must factor such potential difficulties into any decision-making process.
Louis Fisher thinks President Bush got off on the right foot by coming to Congress for authority to use force after the Sept. 11 attacks. According to Fisher, it would have been "foolish for Bush to go to war against terrorism and Congress at the same time." According to Fisher, the founder's gave the power of war solely to Congress.
Recapping the history of the WPR, Fisher pointed out that the founders' model of the proper role of the branches on war powers lasted from 1789 to 1950 during which time any war action had either been declared or authorized. Then, in 1950, Truman sent U.S. troops to Korea without authorization from Congress, relying instead on a U.N. Security Council resolution. Since then, Members of Congress have either not understood their responsibilities under the Constitution or have purposely failed to assert them. President Clinton could not get a U.N. resolution on Kosovo in 1999, so he relied on authorization from NATO to send U.S. troops. A treaty obligation, however, cannot substitute for authorization by both Houses of Congress (a treaty only needs ratification by two-thirds of the Senate).
Since 1800, the courts have reguarly taken up war powers cases, deciding both ways. Since Vietnam, however, they have shied away from making decisions on the grounds that these cases involved political questions and were inappropriate for the courts. To Fisher, WPR is a betrayal of the founders' intent because it gives the President 60 to 90 days to wage war anywhere, for any reason. "It is an extremely dishonest resolution" and does not insure collective judgement. Fisher therefore recommends the repeal of WPR
Christopher Deering agreed with Rudman that WPR has operated as a constraint on the President. Evidence shows that Presidents engaged in more foreign adventurism prior to World War II than since passage of the WPR in 1973. Congress is the author of its own circumstances, frequently abdicating its own authority, Deering noted.
According to Deering, the founders were operating in an undemocratic world in writing a democratic document. As a result, they split the difference by giving the President diplomatic powers with Senate advice and consent, and by giving Congress the power to initiate hostilities, with the President then acting as Commander-in-Chief of the troops once called into service. The main problem has been that once you have a large, standing army, as after World War II, Congress is not needed to authorize an increase in troops to go to war. Congress therefore, "gave away the whole game" when it agreed to allow for a large standing military in peacetime.
Lee Hamilton agrees with the great Constitutional scholar Edwin Corwin that the Constitution is an invitation to struggle between the two branches in matters of foreign policy. It compels the two branches to work together on war.
According to Hamilton, Congress has a responsibility to act on questions of war and peace, and the country is stronger when Congress is involved as the voice of the people. Presidents make mistakes when they act on their own. Congress brings strength to the decision process: it is accessible; it is the most representative body; it is the most independent of the executive. Furthermore, the decision to go to war is too important to depend on the President alone; it will not be sustained over time unless Congress and the American people support the President. "Events in recent decades -- from Vietnam and Watergate to Iran-Contra -- have demonstrated that the country is not better off when the President assumes powers greater than those delegated to him by the Constitution," Hamilton said.
Nevertheless, as Deering too pointed out, Congress has abdicated its responsibilities time after time. It is ambivalent about war. The WPR calls for a joint decision by Congress and the President. It has been useful in forcing some restraint on the President, in telling him to stop, think, listen, explain, and understand. It has been helpful to Congress as well. Presidents have often ignored the consultation requirements prior to taking action. Instead, they give Congress after-the-fact briefings.
In closing, Hamilton said that he would like to see a consultative group of party and committee leaders meeting regularly with the President on national security matters.
In conclusion, there was more agreement than disagreement among the panelists. Overall, the WPR has enforced constraint on the President's powers, forcing him to work with Congress to a lesser or greater extent on matters of military engagement. Congress too has a responsibility to invoke the power it has been given to make this gravest of decisions of when and how to commit our military strength.