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War Powers and the Balance of Power

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Baker and  Christopher recently came out with a proposed revision of the 1973 War Powers Act, which frankly did not seem to address the core problem, which is that this is a Constitutional issue and not merely a matter of fixing a bad law.
Baker and Christopher admitted in their Op-Ed that they did not address the core Constitiutional issue. While they recognize  that one of the problems with the current arrangement is that Congress can dodge its responsibilities and fob off rash decisions to go to war on the President (with varying success), their own proposal doesn't mitigate this at all. Their proposal requires that Congress be "consulted" on armed conflicts expected to last more than a week,  and then within 30 days congress would have to pass a resolution of approval or disapproval. This is inadequate for many reasons. The consultation can easily be skewed by the Executive, just as the intelligence was skewed prior to the Iraq War. And a resolution to disapprove, assuming the President vetoes it, is wrong for many reasons. First, it closes the door after the horse has escaped; second, it requires the two-thirds Congressional veto override, which is very diffiicult to attain, particularly in wartime (as we have seen the last half decade).

A far better option is this overhaul of the existing War Powers bill. This proposal "prohibit[s] presidential entry into future hostilities without congressional action except: to repel and retaliate for an attack on the United States, repel an attack on U.S. troops, or protect and evacuate U.S. citizens."

This proposal is backed by Rep. Walter Jones, R-NC, and Rep. Bill Delahunt, D-MA. What I find most intriguing about this proposal, besides its obvious requirement of timeliness, and assent rather than "consultation," is what effect it could have on the President's Article II powers as Commander in Chief. (Baker and Christopher's proposal does not address this at all, as far as I can tell.) If the President's status as C-in-C flows from a Congressional mandate, rather than from a generalized invocation of his or her "Commander-in-Chief" power, then the balance of power has shifted irrevocably away from the Imperial Presidency of John Yoo.


Comments (1)

Recommended, and thanks for the heads-up. In my opinion, this is what the framers always meant by giving Congress the power to "declare war." But this bill looks like a good way of underlining and reaffirming that Constitutional mandate.

Of course, it pales in significance compared to our debate about the cover of the New Yorker, but perhaps someone will spare a couple of minutes to glance at it.

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