Sect. 1. The President, as Commander-in-Chief of the Armed Forces of the United States, shall not engage in any war without the consent of the Congress, except in cases of rebellion or invasion, and the danger is so imminent as not to admit of a delay till the Congress can be consulted.
Sect. 2. The President shall periodically report to the Congress on the status of troop deployments and hostilities in which United States Armed Forces are involved, as well as on their scope and duration, but in no event shall he report to the Congress less often than once every six months.
Sect. 3. Men 18 years of age shall give two years of service to the military branch of their choice or to the peace corps, but acts of conscription beyond this are prohibited unless the privilege of the writ of habeas corpus shall have been explicitly suspended in accordance with this Constitution.
Sect. 4. The Congress shall have power to enforce this article by appropriate legislation.
The Problem
The question of going to war is a grave concern, which involves the entire nation and can potentially alter every aspect of society, as did the Revolutionary War, the Civil War, and World War II. As they play out and unfold, wars that were once popular can become unpopular and deeply divide the populace, as have the Vietnam War and the Iraq War. For these reasons, the Founding Fathers envisioned Congress occupying a central role in determining questions of war and peace and foreign policy.
While British constitutional practice up to the eighteenth century viewed foreign policy and war-making authority to be the prerogative of the crown, the Founders extended their desire for checks and balances and separation of power to matters of war and sought to keep the United States out of unpopular, divisive and unnecessary wars by giving the people's representatives a role in the decision-making process.
Section 8 of Article I of the Constitution gives the Congress the power:
- To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
- To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
- To provide and maintain a Navy;
- To make Rules for the Government and Regulation of the land and naval Forces;
- To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
- To provide for organizing, arming, and disciplining the Militia,...
In contrast, Section 2 of Article II of the Constitution provides that the President "shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." So the balance between competing interests is set. The President commands the Armed Forces of the United States, but Congress must fund the military for there to be Armed Forces for the President to command. The President has the ability to quickly respond to military crises, but the Congress must approve a state of war because war changes the legal footing upon which the country operates. The President conducts and controls the day-to-day operation of a war, but the Congress makes the law and rules governing the use of military forces.
Checks and balances are not always convenient, however, and Presidents and Congresses, particularly since the mid-20th century, have conspired to alter the constitutional balance of war powers. With rare exceptions, Congress has increasingly been reluctant to take the possible political heat required to fulfill its constitutional war powers. Rather than a partner in making decisions of war, Congress has become a de facto rubber stamp of Administration actions, passing "authorizations for the use of force" or, worse yet, toothless non-binding resolutions. Only two instances in the past sixty years come to mind in which Congress acted to cut funding to influence U.S. policy in a war situation: in the early 1970's to end the Vietnam War and in the 1980's to end U.S. aid to the Contras in Nicaragua.
In addition to Congress's abrogation of constitutional authority, Presidents have worked to increase their own constitutional power by playing semantic games. Rather, than war in Korea, President Truman engaged in "police actions" under the authority of the United Nations Security Council. LBJ fabricated the Gulf of Tonkin Incident to move Congress to pass a resolution, which the Johnson Administration subsequently used as the legal authority it needed to escalate American involvement in Vietnam. In the wake of the Vietnam War, Congress showed a rare moment of backbone and passed the War Powers Act in 1973, which forbids prolonged military operations without a congressional declaration or resolution of war. Nevertheless, Presidents have repeatedly refused to acknowledge the constitutionality of the Act.
As a consequence, Congress and the executive branch have settled into a new "understanding" that has generally held since the early 1980's; the President is free to use the military wherever in the world he sees fit, so long as he obtains a congressional resolution for "long-term operations" (a rather vague term whose meaning can shift with the circumstances), aka, a war. The underlying problems which have led to this new balance of power are easy to see:
1. In this computerized age with ICBM's and atomic warheads, it is foolish not to maintain a standing army, a situation that the Founders thought dangerous to liberty;
2. Congress is filled with career politicians who are too concerned about "political fallout" to stand up to challenge or shut down presidential military ventures and represent the interests of the people;
3. The lines between the executive and legislative functions are blurring, and too many people view the Congress as a "rubber stamp" to Administration policy, much as it would be if we were set up as a parliamentary system of government;
4. Language has evolved over the past two centuries so that the constitutional language that talks about war is no longer comprehensive enough. There are military activities short of war which are simply not covered by the Constitution, and Letters of Marque and Reprisal are anachronisms that are no longer relevant; and
5. While Congress currently has the power to "declare war," some supporters of presidential power argue that this is different from "making war," which they say is reserved to the President as Commander-in-Chief.
The Explanation
The proposed war powers amendment herein presented would not solve all of these problems. For example, a congressional term limits amendment might be worth considering to address Problem 2. However, it is clear that the language of the Constitution should be updated to cover modern-day realities of the interaction between the executive and legislative branches. A section-by-section analysis of the proposed amendment will outline which of these problems can be addressed if the war powers amendment was ratified.
Sect. 1. The President, as Commander-in-Chief of the Armed Forces of the United States, shall not engage in any war without the consent of the Congress, except in cases of rebellion or invasion, and the danger is so imminent as not to admit of a delay till the Congress can be consulted.
This amendment does not alter any of the existing war powers. Congress still funds the military and its operations. This power is in line with the general principle that the legislature controls the purse. The President is still the Commander-in-Chief. In principle, this is an obvious executive action and requires the accountability, energy and efficient decision-making the President has at his disposal. It is simply not possible to conduct a war by committee, least of all by Congress.
However, the brake that the Founders put in place to slow the country's entry into war has worn down to nothing and needs to be reassessed. The language of section 1 is meant to remove any distinction between "make war" and "declare war." Formally declaring war seems to be an old-fashioned idea these days, and sending troops onto the battle field is the act that makes a war - not a congressionally-approved declaration. This section seeks to make clear that however war is "made," the President cannot do it without the express consent of Congress. The last clauses of the section attempt to make provision for emergency situations in which delay and consultation would prove disastrous to the nation, but even this should be reserved for extraordinary situations in which congressional consultation would be sought as soon as humanly possible (facilitated by Section 2).
Sect. 2. The President shall periodically report to the Congress on the status of troop deployments and hostilities in which United States Armed Forces are involved, as well as on their scope and duration, but in no event shall he report to the Congress less often than once every six months.
This section implements, in principle, the reporting provisions of the current War Powers Act. The first section focuses on wars of the traditional sense in an effort to retain the President's ability to respond to situationd that require quick, decisive action. This second section, however, requires reporting for any type of military operation whatsoever (arguably excepting training exercises and war games). The idea is that initial and periodic presidential reporting to the Congress will keep the state of the war front-and-center of the American political discussion. It will also work to keep the Administration above-board in the execution of the war, bringing the conduct of the war into the light of day. Corruption and incompetence are too great a temptation if accountability is removed from the equation.
Sect. 3. Men 18 years of age shall give two years of service to the military branch of their choice or to the peace corps, but acts of conscription beyond this are prohibited unless the privilege of the writ of habeas corpus shall have been explicitly suspended in accordance with this Constitution.
This provision requires every 18-year old male to give two years of military or peace corps service, but beyond this, limits the circumstances in which a draft can be instituted. While this does not directly address war powers imbalances, it would work to change the way Americans look at war. The populace would be more educated in military matters and would have a more direct stake in what our political leaders did with the military - men through direct service and women because they would probably know several people (fathers, brothers, husbands, sons - even other women who voluntarily enlisted) in the military. In addition, limiting the availability of the draft and, by extension, limiting the size of the military, Congress and the President would, in theory, be more cautious about committing the limited resources of the Armed Forces. War would truly be the last resort to commit the precious resources of the military. Of course, this theory is arguable, at best, since this has proved to be a hindrance in committing the overwhelming forces we needed in 2003-2005 to subdue Iraq and defeat the insurgency there. In any case, limiting the draft would still work to protect the people's civil liberties and to limit the power of politicians. Only a situation so dire that would permit the suspension of habeas corpus would be a situation in which the institution of the draft would be constitutionally permissible.
Sect. 4. The Congress shall have power to enforce this article by appropriate legislation.
This section is the obligatory clause that gives Congress the explicit power to implement the provisions of this amendment. Without this, future Presidents would undoubtedly continue to rely on confusion and obfuscation to skirt the constitutional distribution of war powers.
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