| War Powers Authority |
 |
 |
|
I. The ProblemThe system of checks and balances on Constitutional war powers authority has eroded. The evolution of the world order and the emergence of serious threats from terrorists have supplied new labels for the ways in which force is used and, in some cases, new justifications for its use. But they have not changed the constitutional dictate that only Congress is empowered to authorize the initiation of the use of force abroad except when force is used for a limited range of defensive purposes. Nevertheless, presidents have asserted that Congress’s authorization for various uses of force abroad was not necessary, and the executive branch has failed to share complete and accurate information with Congress regarding the asserted justification for the use of force. Congress at times has failed to exercise its constitutional duty to insist on a collective judgment about initiating force abroad, either because it tries to evade political accountability for a decision on war or because is defers to the presumed superior competency of the executive to make that decision. Insofar as national security decisions rest on secret information shared nominally, if at all, with Congress, the temptation to defer to the President only increases. Furthermore, despite the intentions of its sponsors, the 1973 War Powers Resolution has contributed to the erosion of the checks and balances system insofar as it has been understood to give both political branches a “free pass”: the President to use force for sixty days without prior congressional authorization, and Congress to assume that it could discharge its constitutional duty by doing nothing. II. Proposed Solutions
Except when force is used for a limited range of defensive purposes, only Congress has the constitutional authority to decide whether and when our Nation should deploy our troops abroad, and the President must seek advance authorization from Congress for initiating the use of force abroad. In seeking such authorization, the President must share complete and accurate information with Congress. Likewise, Congress must perform its constitutional duty to reach a deliberate and transparent collective judgment about initiating the use of force abroad except when force is used for a limited range of defensive purposes.
1. Proposal 1: The new President should publicly pledge that he will not commit troops abroad without prior congressional authorization, except when force is used for a limited range of defensive purposes. The President should further pledge that he will present complete and accurate information to Congress about any such proposed use of force. 2. Proposal 2: To obtain the informed collective judgment of Congress on initiating the use of force abroad, the President should supply Congress with timely, truthful and complete information about a proposed use of force. 3. Proposal 3: Congress should exercise its constitutional authority to reach a deliberate and transparent collective judgment about whether and when the United States should deploy our forces abroad, except when force is used for a limited range of defensive purposes. Congress should also use its own investigatory tools to determine the reliability and completeness of the information on which it bases its collective judgment. III. Allies*Bill of Rights Defense Committee (BORDC) Chip Pitts, President Common Cause Sarah Dufendach, Vice President for Legislative Affairs The Constitution Project Sharon Bradford Franklin The Constitution Project, Deciding to Use Force Abroad: War Powers in a System of Checks and Balances, available at http://www.constitutionproject.org/warpowers/article.cfm?messageID=49&categoryId=1 Defending Dissent Foundation Sue Udry, Director Essential Information John Richard or Robert Weissman Government Accountability Project Jesselyn Radack, Homeland Security Director Liberty Coalition Michael D. Ostrolenk, Co-Founder/National Director Stanford Law School - Mills International Human Rights Clinic Barbara J. Olshansky, Leah Kaplan Visiting Professor and Clinic Director U.S. Bill of Rights Foundation Dane vonBreichenruchardt, President * These groups and individuals support the general principles expressed and the general policy thrust and judgments in the policy proposals described above. The allies listed do not necessarily endorse the specific language in every proposed solution, but they do agree that the proposals reflect the general principles that should govern policy in this area. Please contact the individuals and organizations listed in this section for more information. IV. Counterarguments and Rebuttals: The National War Powers Commission recently proposed that Congress be involved only in “significant armed conflicts,” and not in minor engagements, emergency defensive actions or law enforcement activities, as to which the Commission believed that the President should have authority to act unilaterally. In the Commission’s view, its proposal is “practical” and “realistic,” has a “reasonable chance” of garnering support from both the President and Congress and maximizes the likelihood that the executive and legislative branches will productively consult with each other regarding matters of war. However, its recommendation that some war powers authority be reserved exclusively for the President in consultation with a small cross-section of Congress (a proposed “Joint Congressional Consultation Committee”) is contrary to the Constitution’s delegation of powers. V. Recommended Documents for Further Information a. Public Opinion Polls: Gallup polls show that Americans strongly favor requiring prior congressional approval of decisions to go to war. A May 2008 Gallup poll found that an overwhelming majority of Americans, 79%, believe that the President should be required to obtain congressional approval before sending troops abroad. This number is essentially unchanged from the 80% of Americans who held the same belief in November 1973, at the close of the Vietnam War, and the 82% in January 1991 who believed it “important” for the President to obtain congressional approval before initiating military action in Iraq. See National War Powers Commission Report, App. 6 at 2. Gallup polling in May 2008 also indicates that Americans favor congressional approval even in exigent circumstances and where military involvement is limited. For example: · Approximately 76% of Americans believe congressional approval should be required even if military involvement was not expected to last long; · Approximately 70% of Americans believe congressional approval should be required if the President wants to use planes to bomb suspected terrorists; · Approximately 50% of Americans favor requiring congressional approval for humanitarian missions in response to natural disasters; · Approximately 46% of Americans thought congressional authorization should be required for any response to an attack on the United States; and · Approximately 40% favored congressional approval even if American citizens were in danger or in need of rescue abroad. b. Cato Institute, “Reclaiming the War Power,” Cato Handbook for Congress, Policy Recommendations for the 108th Congress, available at http://www.cato.org/pubs/handbook/hb108/hb108-11.pdf (recommending that Congress should (i) insist that U.S. armed forces not be deployed were hostilities are likely or imminent without congressional approval; (ii) defund any such deployment that lacks prior congressional approval; (iii) insist that hostilities not be initiated by the executive branch unless and until Congress has authorized such action; and (iv) oppose any effort to reshape national security doctrine in a way that denies congressional supremacy over the war power). c. The Constitution Project, Deciding to Use Force Abroad: War Powers in a System of Checks and Balances, available at http://www.constitutionproject.org/pdf/War_Powers_Deciding_To_Use_Force_Abroad.pdf(Report of the War Powers Initiative Committee). d. House of Representatives, Hearing before the House Subcommittee on International Organizations, Human Rights, and Oversight of the Committee of Foreign Affairs, “War Powers for the 21ST Century: The Congressional Perspective” (March 13, 2008), available at http://www.fas.org/irp/congress/2008_hr/warp21.pdf. e. House of Representatives, House Joint Resolution 53: Constitutional War Powers Amendments of 2007, available at http://www.govtrack.us/congress/bill.xpd?bill=hj110-53. f. Miller Center of Public Affairs, National War Powers Commission Report (2008), available at http://millercenter.org/policy/commissions/warpowers (proposing a War Powers Consultation Action of 2009 to replace the War Powers Resolution of 1973). g. Frank Newport, “Public Wants Congress to Approve Military Actions, Bombings” (July 7, 2008), available at http://www.gallup.com/poll/108658/Public-Wants-Congress-Approve-Military-Action-Bombings.aspx (reporting results of May 2008 Gallup polling) h. Senate, Statement of Louis Fisher appearing before the Senate Committee on the Judiciary, “Exercising Congress’ Constitutional Power to Terminate War” (Jan. 30, 2007), available at http://www.constitutionproject.org/pdf/Louis_Fisher_Testimony1.pdf. i. The Constitution Project, Deciding to Use Force Abroad: War Powers in a System of Checks and Balances, endorsed by a bi-partisan blue ribbon committee co-chaired by two former Members of Congress, Mickey Edwards (R-OK) and David Skaggs (D-CO), available at http://www.constitutionproject.org/warpowers/article.cfm?messageID=49&categoryId=1 j. Jesselyn Radack, the War on Terror: No Blank Checks, 25-26 ASPENIA 211 (2004) (Aspen Institute Italia), available at http://2009transition.org/liberty-security/administrator/index2.php?option=com_docman§ion=documents&task=download&bid=9 |