A Chequer-Board of Nights and Days

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.

It should be noted that there appears to be some confusion on a key point of the proposed legislative design. In the event that Congress successfully overrode a Presidential veto,

It's unclear exactly what might happen in that scenario, although the report suggests the override would not be binding on the president. According to the report, a successful override would force the president to confront "political reality." It notes that Congress could press to make the resolution binding, and that it would have the "power of the purse" to cut off funds for a war.

However, the Commission's final report states the following at pp. 8-9:

Under the Act, once Congress has been consulted regarding a significant armed conflict, it too has obligations. Unless it declares war or otherwise expressly authorizes the conflict, it must hold a vote on a concurrent resolution within 30 days calling for its approval. If the concurrent resolution is approved, there can be little question that both the President and Congress have endorsed the new armed conflict. In an effort to avoid or mitigate the divisiveness that commonly occurs in the time it takes to execute the military campaign, the Act imposes an ongoing duty on the President and Congress regularly to consult for the duration of the conflict that has been approved.

If, instead, the concurrent resolution of approval is defeated in either House, any member of Congress may propose a joint resolution of disapproval. Like the concurrent resolution of approval, this joint resolution of disapproval shall be deemed highly privileged and must be voted on in a defined number of days. If such a resolution of disapproval is passed, Congress has several options. If both Houses of Congress ratify the joint resolution of disapproval and the President signs it or Congress overrides his veto, the joint resolution of disapproval will have the force of law. If Congress cannot muster the votes to overcome a veto, it may take lesser measures. Relying on its inherent rule making powers, Congress may make internal rules providing, for example, that any bill appropriating new funds for all or part of the armed conflict would be out of order.

So a resolution signed by the President or one that overrides a Presidential veto would have the force of law after all. Note that this is only because the resolution of disapproval would be a joint resolution that is presented to the President for either signing or a veto under the Presentment Clause in the Constitution. This is different from the concurrent resolution of approval contemplated by the National War Powers Commission's legislative design, which would be voted on within 30 days of the commencement of a "significant armed conflict." Related to this matter, see the Supreme Court's opinion in INS v. Chadha, which forbids legislative vetoes and which will likely serve as a precedent with which to find Section 5(c) of the 1973 War Powers Act, an observation that is noted by the Commission on p. 23 of the report.

The justification for the Commission's legislative design is spelled out on p. 9:

In our opinion, the Act's requirements do not materially increase the burdens on either branch, since Presidents have often sought and received approval or authorization from Congress before engaging in significant armed conflict. Under the Act, moreover, both the President and the American people get something from Congress -- its position, based on deliberation and consideration, as to whether it supports or opposes a certain military campaign. If Congress fails to act, it can hardly complain about the war effort when this clear mechanism for acting was squarely in place. If Congress disapproves the war, the disapproval is a political reality the President must confront, and Congress can press to make its disapproval binding law or use its internal rule-making capacity or its power of the purse to act on its disapproval.

You can go ahead and read the Commission's entire report, including the legislative language of its proposed substitute for the 1973 War Powers Act. For myself, I concur with the opinion that the 1973 Act is unconstitutional and that a new design is needed. But I am not sure why in addition to Congress's ability to declare war under the Constitution and the precedent established by Presidents seeking and getting authorizations for the use of force in both Persian Gulf Wars, we need a new legislative design. I am certainly open to one but I am not sure that the Commission appreciates the fact that we have a fairly well established set of rules already concerning warmaking and that these rules place significant obligations on both Congress and the President. I have problems with defining "significant armed conflict" to constitute "any combat operation by U.S. armed forces lasting more than a week or expected by the President to last more than a week." Such a definition seems to be much too restricting. And of course, even if a joint resolution of disapproval is passed and signed by the President, one expects that the ability of the President to use signing statements to make clear his/her interpretation of the joint resolution and plans on implementing it will come into play here and augment Presidential power. The Commission does not take note of this and does not discuss what might happen in the event that a signing statement is used that appears to be at variance with the language of any joint resolution of disapproval.