Glennon Pans Baker-Christopher War Powers Report
Michael Glennon doesn’t pull any punches in the latest AJIL (also available on SSRN here) in going after the report of the Miller Center’s National War Powers Commission. The report advances an “illusory solution to a nonproblem”, with “baffling” and “flatly unconstitutional” proposals for reform. The piece is particularly scornful of the panel’s call to formalize a presidential free pass for anything less than “significant armed conflicts,” defined as those expected to last less than a week.
I agree that this Baker-Christopher effort doesn’t add much to the mix (almost always the case these days with blue-ribbon commissions, which seem a throwback to another, more elite-driven era). There’s not going to be any “War Powers Consultation Act of 2009.” But it doesn’t seem to me that any other legislative fix for the War Powers Resolution — including one supported by Glennon — is either probable or desirable.
The Resolution itself is a dead letter, or at least its 60-day termination provision is. (One could probably apply Mike’s theory of desuetude in the context of IL and the use of force to reach this result.) The division of war power works itself out in an accretive fashion through practice. I’m sure we’ll get more of the same from this Administration — not in a bad way, mind you, and no doubt accompanied by less bluster — as the current occupant of the White House protectss time-tested institutional prerogatives established by his predecessors. That includes a free pass for minor engagements, whether they last a week or longer.
The one change we might witness — one that Glennon would welcome — would be greater judicial participation in the process. The courts are getting more confident in the realm of national security, and they will be less concerned about screwing things up. I wouldn’t be surprised if at some point we get an opinion like Judge Green’s in Dellums that actually crosses the Rubicon and delivers a merits opinion. But the courts would almost surely stay in line with the practice, which would translate into an affirmation of significant presidential discretion. Who knows, we might even get a court to declare the WPR unconstitutional, and to end a 35-year-old distraction.