US to replace War Powers Act

Two former American Secretaries of State from opposite sides of politics have joined forces to recommend US Congress replace the controversial 1973 War Powers Act. Republican James Baker and Democrat Warren Christopher recommended this week that the Act be replaced by a new law that would provide for more meaningful consultation between the president and Congress. The original act was put in place over the veto of Richard Nixon and stated the President could only send troops in action abroad by authorisation of Congress or else if the US is already under attack or serious threat.

According to the Act, the president is required to report to both Houses of Congress within 48 hours of having taken such action. Congress may then restrict the continuation of troop deployment despite any presidential veto. The act was aimed at restricting the president's introduction of US forces into potentially hostile situations without Congressional declaration of war. However it has been considered unconstitutional by each president since its passage, and its provisions generally have been ignored by both Congress and presidents. The resolution has never been formally invoked despite numerous armed conflicts ranging from US invasions of Grenada and Panama to military action in the Balkans and the 1991 Persian Gulf War.

Baker and Christopher were co-chairs of the National War Powers Commission which released their report (pdf) after 13 months of study this week. The report prefaced its remarks by noting that the war powers of Congress and the president have been a thorny issue since independence. The Constitution provides both parties with explicit war powers, as well as a host of arguments for implied powers. Article I of the Constitution gives Congress the exclusive right to declare war, but Article II makes the president the commander in chief and nowhere does it say where one jurisdiction ends and the other begins. The only law on the books relating to war power – the 1973 act – is impractical and more often breached than followed. The War Powers Act was a poorly thought-out response to the use Lyndon Johnson made of the Gulf of Tonkin Resolution in 1964.

The commission report said that consistent poll data showed that the President and Congress should consult each other before going to war. However this has not always happened and there is no clear mechanism for it to happen. The War Powers Resolution of 1973 contains only vague consultation requirements and if Congress fails to act on a presidential report, all hostilities must cease within 60 to 90 days. In practicality Presidents have gotten around this requirement merely by failing to issue a report. The commission acknowledges this is “unhealthy” and a failure of law.

They proposed instead a new War Powers Consultation Act of 2009 to be signed by the incoming President. The new act requires consultation between the arms of government before the US engages in combat operations expected to last more than a week (what it calls “significant armed conflict”). Once Congress is consulted and fails to immediately support the war resolution, it must hold a vote within 30 days calling for its approval. If both houses support a joint resolution of disapproval, it has the force of law overriding presidential veto.

The commission was averse to getting the Supreme Court to decide the issue which generally has steered clear of arbitrating a "political question" arising from a conflict between the elected branches. Speaking from Capitol Hill on Tuesday Baker and Christopher said their recommendation was not a response to the Iraq war which was authorised by a vote of Congress. Nor would they provide any examples where US military action did not exhibit consultation between the executive and legislative branches. "We have tried very hard not to call balls and strikes on past history," said Christopher.