The Proposed War Powers Amendment Revisited

Earlier this year, I proposed four amendments that I thought would shore up areas of deficiency in the U.S. Constitution, the first of which was a proposed War Powers Amendment. As with any set of proposals, these were meant to be conversation starters, not the final, definitive word on the issues at hand. In my proposed War Powers Amendment, I contended that a revision of the language around Congress's power to "declare War, and grant Letters of Marque and Reprisal" is required to clarify that only Congress has the power to bring the nation into a war. My proposed language of clarification is as follows:

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.

As I have allowed this to marinate in thought and analysis these past few months, I am not sure that this is the most effective way to patch the system of war powers set forth in the Constitution. Specifically, my concern is two-fold:

1. The wording of the proposed amendment does not allow for any Presidential action in cases that are generally accepted as inherent to the President's "defensive" war powers, e.g., responding to an attack on U.S. embassies, mounting rescue operations for U.S. citizens taken hostage abroad, or engaging in overseas surveillance activities.

2. The most effective checks and balances are those that are procedurally-based. Relying on different or more words to control Presidents who ignore words already in the Constitution probably wouldn't yield the results that are needed to restore balanced war powers between Congress and the Presidency.

I recently read the War Powers Initiative, published by the Constitution Project, which analyzes the current state of war powers among the three branches of the U.S. government and gives several Recommendations for restoring balance. Not one of these Recommendations proposes a new constitutional amendment. In the view of the War Powers Initiative, the Constitution already has all the tools that Congress and the courts need to reign in presidential war-making. In the words of the report, Congress's authority to "declare War [and] grant Letters of Marque and Reprisal" is an exclusive grant of power over all forms of lesser and greater war making.

According to international law in 1789, a state could declare war either by “word or action,” as the influential political theorist John Locke put it. A state publicly announced the state of war “by word” by making a formal declaration of war
and delivering it to the enemy. A state initiated a state of war “by action” simply by committing an act of war.... Although Congress, as a legislative body, cannot itself also commit an act of war, it can authorize the President to act instead. The assignment of the Declaration power to Congress thus gives it not only the power to announce a state of war by formal declaration, but also to pass legislation authorizing the President to initiate war by using force. Furthermore, the Constitution also vests in Congress the authority to grant Letters of Marque and Reprisal to privateers to use force or to seize enemy property in retaliation for an injury to the United States.

So if a proper understanding of the current wording of Article I, Section 8 would resolve any confusion over Congress's role in initialing war and the President's required reliance on Congress for such an initiation, then trying to add to this wording might run the risk of constitutionally altering the President's ability to respond militarily to situations thrust upon the United States.

So while I am inclined to agree with the War Powers Initiative report that different constitutional language would not help matters in this area, I have been thinking of a different War Powers Amendment that might be helpful in restoring congressional involvement in decisions to both go to war and to stay at war. My revised War Powers Amendment is centered on the idea of writing into the Constitution the two-House legislative veto provided for in the War Powers Resolution. The following is my own suggestion to start the process of crafting such an amendment:

At any time that United States military forces are engaged in hostilities outside the territories of the United States, such forces shall be removed from the theater of such hostilities by the President if the Congress so directs by majority vote of both Houses.

Congress currently possesses the real power to cut off the President's ability to conduct military operations simply by not passing a bill funding those military operations. The leadership of either House of Congress or a determined minority in the Senate could refuse to allow an Iraq War funding bill to be voted on, and viola! The President would run out of funds in a few months and would have no choice but to withdraw American forces from Iraq.

Odds are low, however, that either Party will resort to cutting off funding to stop a war. The Party of the president does not want to be seen as disloyal to the president, and the opposition party does not want to be viewed as against the troops. While this is a false alternative, the desire among legislators to be viewed as patriotic Americans will color these types of questions for the foreseeable future. We could chalk this up to weak political will among Representatives and Senators, but that doesn't bring us any closer to checking the president's de facto war-making ability.

One could argue that additional war powers checks on the presidency are risky and unnecessary: risky because new checks might compromise his ability to defend the nation; unnecessary because the electoral college encourages the election of moderate presidents. After all, no president has engaged in war-making that has not at least been implicitly approved by Congress (even if only through passage of appropriations).

I think this is a weak argument, along the same lines as "you must fund this war to support the troops in the field." It's a red herring that its advocates parade about in order to smokescreen the underlying issue. If a war or some lesser military operation is vital to the national security or defense of the United States, then the executive branch should have no problem getting the support of a majority of the people's representatives in Congress. If a majority of both houses of Congress are for a war, then the majority of the American people probably support said war. If the American people turn against a war, they will probably elect the opposition Party to power with a mandate to stop the war, as they did in 2006 when they turned the Congress over to the Democratic Party for the first time in twelve years. And any war that does not have the majority support of Congress and the American people will generally be a war whose continuation will damage the United States more than its end.

President Bush was given authority by Congress in 2002 to wage war in Iraq, so all of those who label the Iraq War as "Bush's war" are engaging in nothing but unhelpful polemic. President Bush received the approval of Congress to go to war against both Afghanistan and Iraq, unlike President Clinton did when he conducted the 1999 air campaign against Yugoslavia. Nevertheless, public sentiment has soured on the Iraq War for several reasons (incompetent execution of the war after the fall of Saddam Hussein and continued in-fighting among sectarian groups in Iraq, to name two), and Congress seems powerless to do anything to effect the situation. Congress has seen limited success through its power of the purse in at least applying pressure, as evidenced by the adoption of the surge strategy around the end of last year. But the President's ability to veto any war funding bill with constricting conditions leaves Congress with the same false alternative that they cannot politically work around.

The idea of my new proposed War Powers Amendment would be to give Congress one more alternative in its chest of war powers. The President conducts the day-to-day execution of military operations, but he is not the sole decider of when the country should be committed to war. The Constitution requires the collective judgment of Congress to be sought before the country goes to war, and the collective judgment of Congress should be decisive in keeping the country at war. So if we could decouple the power of Congress to instruct a President to end a war from debates and perceptions around "funding the troops in the field," then perhaps Congress might find the political will to fulfill its constitutional duty to be a partner in the conduct of the nation's wars. This is the aim of this newly proposed amendment: if both Houses of Congress pass a resolution instructing the President to remove U.S. military forces from a theater of hostilities, then that resolution becomes law, not subject to a veto from the President.

This amendment would also carry a couple of other benefits: the power of the president to conduct lesser military operations could be constitutionally tolerated without fear of executive excesses leading the country into protracted, unpopular wars. The executive's hand is free for the short term (most Americans generally support this power, even if some operations like the 1999 Kosovo War are constitutionally suspect) while providing a relief valve that Congress can employ if a majority of both Houses can be convinced that the president has gone too far in some particular venture.

Another benefit is that this amendment would undoubtedly increase a president's willingness to negotiate matters of war strategy with Congress in the first place. A president would not wish to risk the ire of Congress if Congress has this procedural check at its disposal, so he would, I think, seek to make Congress more of a partner from the start. Members of Congress who have their own "skin in the game," so to speak, would see less of a need to resort to this power to legislate the end of a war.

As a concluding note, it is worth highlighting the inclusion of the phrase "outside the territories of the United States." This amendment would not apply to military deployments and operations within the United States itself, as this is really a different kind of situation. U.S. military forces would be operating within the United States in a non-training mode for two reasons:

1. combating an invasion force or repressing an insurrection, or
2. enforcing domestic laws

The first is a legitimate use of the Armed Forces. However, executive excesses would probably be tied to the second scenario, as might be the case if a President sought dictatorial powers through the imposition of martial law. This danger can not be checked by so simplistic a mechanism as envisioned by this amendment. A more general sweeping amendment governing the use and application of states of national emergency would be more appropriate. Perhaps the Posse Comitatus Act is enough to protect against this nightmare vision. In any case, I am not prepared at this time to propose constitutional protections for it.