The United States has waged as many undeclared wars in the past seven decades as it has declared wars in its entire history. To some this may come as a shocking and perhaps disconcerting statistic, while to others it may simply represent the evolving nature of war and the United States’ role in global affairs. The past seven decades, nonetheless, represent a dramatic escalation in American military commitment. One significant development occurred in 1973 with the enactment of the War Powers Resolution. The act’s lack of precision, however, has since enabled presidents of both parties to initiate military action without prior congressional approval. Now, with the most recent “wars” in Afghanistan and Iraq winding down, the United States should seriously reconsider its conduct of military affairs.
I, along with many others, believe that the most important step in this process should come in the form of repealing and replacing the War Powers Resolution. As such, Virginia Senator Tim Kaine and Arizona Senator John McCain have recently proposed the War Powers Consultation Act. The Act is based off a draft proposal from The Miller Center for Public Affairs’ commission on war powers and constitutes a necessary and urgent reform in military policy.
The War Powers Resolution, which was passed over President Nixon’s veto, represented an attempt by a post-Vietnam Congress to settle the long-standing tension between the president’s power as Commander in Chief and the legislature’s power to declare war. In brief, the resolution allows Congress to direct the withdrawal of U.S. forces from action beginning 60 days after the start of hostilities, unless Congress declares war or votes to extend the 60-day period. Nonetheless, some presidents — most notably Reagan — have chosen to challenge it by arguing that it comprises an impermissible violation of separation of powers.
From a Constitutional standpoint, it seems relatively reasonable that Congress should retain a significant degree of involvement in matters of war. In its attempts to ensure such involvement, however, the act is vague, ineffectual and unenforceable. The act’s central pitfall is its ambiguity. In merely requiring the President to submit information to Congress concerning military action within 48 hours of the start of hostilities, the act leaves substantial leeway to avoid serious congressional consultation. Though the central impulse of the War Powers Resolution — to restore Congress’ place in the decision-making process — was sensible, its provisions have failed to achieve that result in practice. Granted, the act did increase the burden of proof on the president for ordering troops into action — a move that many have contested — yet the act has ultimately failed due to the lack of a pragmatic consultation process with Congress.
To be clear, though the War Powers Resolution has been a policy failure, it should not simply be repealed. To do so is to ignore the very nature of modern war. The president’s ability to exercise discretionary executive power as Commander in Chief should remain.
Nevertheless, if the United States is to stay true to its democratic ideals, the current law is unacceptable. It purports to be democratic by ostensibly requiring congressional consultation, but in practice it has tended to inhibit open dialogue. At a time in which potential U.S. military involvement abroad in arenas such as Syria is a hotly debated topic, the current act’s lack of clear, pragmatic rules governing military action has the potential to lead to haphazard, long-term conflicts. By failing to provide serious and clear measures for congressional consultation, the act expresses a certain amount of ambivalence toward war that is both hazardous for our military forces and detrimental to the integrity of U.S. military strategy.
This particular lack of consultation was highlighted in the draft proposal presented in 2007 by the Miller Center panel. The current bill before Congress draws on the panel’s suggestion that a Joint Congressional Consultation Committee be created in order to ensure Congress’ central role in the process. This proposal provides the much-needed clarity and inter-branch discussion that the former act failed to require. The previous act encouraged consultation but did not codify the exact process and lacked any reasonable means of enforcing such discussion between the president and Congress.
By providing a codified consultation process, one that allows Congress a role in deliberations prior to military action, the new War Powers Consultation Act can help to restore the rightful place of Congress at the center of military considerations. As events in the Middle East escalate once more, it will be increasingly important that the United States both reevaluates its foreign policy and reforms the way in which it conducts military operations. The current lack of definitive legal and constitutional answers to the current debate should not be allowed to persist.
Conor Kelly is an Opinion columnist for The Cavalier Daily. His columns run Tuesdays.
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