Glennon Pans Baker-Christopher War Powers Report

by Peter Spiro

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.

One Response

  1. Whether a legislative fix is probable or not, I believe it is desirable.  The real question is whether a general legislative fix is even possible.  I am uncertain whether the Constitution provides for any possible remedy to unilateral presidential war-making other than impeachment (a situational legislative fix).  Even if Congress enacted a federal crime for aggressive war under its power to define and punish offenses against the law of nations, it would still require its impeachment power to enforce it (as it is doubtful any AG would pursue such a case either directly or against a proxy defendant, such as the SECDEF or a regional combatant commander). 

    This would also appear to be the exclusive remedy available if Congress were to de-fund a war that a president then continues (provided a subordinate does not refuse to violate the fiscal law in a way that makes conducting the war practically impossible – meaning without fuel, etc. – highly unlikely).  At the end of the day, this fact appears to make the entire topic the most political of political questions.  Perhaps this is appropriate when it comes to the nation’s power to initiate or engage in war. 

    Nevertheless, this does not mean that the courts do not have a role in the nation’s conduct in war.  They have always had a role, such as in prize law and military commissions (Milligan, Yamashita, Quirin, Hamdan) and domestic measures incident to war (Milligan, Korematsu, and many others).  There is no reason to believe that they cannot perform their role in appropriate cases.  There are, of course, practical and prudential limits to be observed.

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.