The War Powers Consultation Act of 2009

More than a year ago the University of Virginia’s Miller Center of Public Affairs convened a National War Powers Commission, which today unanimously issued its report on improving future relations between the Executive and Legislature when it comes to involving U.S. forces in conflict. The bipartisan Commission was chaired by Former Secretaries of State James A. Baker III and Warren Christopher (most of the remaining members were former government officials of some sort–representing various parts of the legislature, executive, military and judiciary. Dean Anne-Marie Slaughter appears to be the one academic member whose actively worked in the foreign affairs law area). You can read the whole report here as well as its appendices (or, if you prefer, watch this presentation by Secretaries Baker and Christopher).

The big takeaway points? First (and perhaps not too surprisingly) the Commission joins the chorus of criticism of the current War Powers Act, labeling it partially unconstitutional, not to mention ineffective. As a result, the Commission recommends that the next Congress repeal the WPA and replace it with a new statute designed to more appropriately allow both the Executive and Congress to play their respective roles in decisions on the U.S. use of force — the War Powers Consultation Act of 2009. Here’s how the Report summarizes the proposed law:

The stated purpose of the Act is to codify the norm of consultation and “describe a constructive and practical way in which the judgment of both the President and Congress can be brought to bear when deciding whether the United States should engage in significant armed conflict.”

The Act requires such consultation before Congress declares or authorizes war or the country engages in combat operations lasting, or expected to last, more than one week (“significant armed conflict”). There is an “exigent circumstances” carve-out that allows for consultation within three days after the beginning of combat operations. In cases of lesser conflicts — e.g., limited actions to defend U.S. embassies abroad, reprisals against terrorist groups, and covert operations — such advance consultation is not required, but is strongly encouraged.

Under the Act, once Congress has been consulted regarding a significant armed conflict, it too has obligations. Unless it declares war or otherwise expressly authorizes the conflict, it must hold a vote on a concurrent resolution within 30 days calling for its approval. If the concurrent resolution is approved, there can be little question that both the President and Congress have endorsed the new armed conflict. In an effort to avoid or mitigate the divisiveness that commonly occurs in the time it takes to execute the military campaign, the Act imposes an ongoing duty on the President and Congress regularly to consult for the duration of the conflict that has been approved.

If, instead, the concurrent resolution of approval is defeated in either House, any member of Congress may propose a joint resolution of disapproval. Like the concurrent resolution of approval, this joint resolution of disapproval shall be deemed highly privileged and must be voted on in a defined number of days. If such a resolution of disapproval is passed, Congress has several options. If both Houses of Congress ratify the joint resolution of disapproval and the President signs it or Congress overrides his veto, the joint resolution of disapproval will have the force of law. If Congress cannot muster the votes to overcome a veto, it may take lesser measures. Relying on its inherent rule making powers, Congress may make internal rules providing, for example, that any bill appropriating new funds for all or part of the armed conflict would be out of order.

So, what say you readers? Is it time to get rid of the War Powers Act, and, if so, does the Commission’s proposal have any legs?