Congress passed the War Powers Resolution over President Nixon’s veto in an effort to curb the president’s rapidly growing powers, as evidenced by the Vietnam War. The law sets up a clear framework: the president must “in every possible instance” consult with Congress, report to Congress within 48 hours of introducing armed forces into hostilities, and withdraw troops after 60 to 90 days if Congress does not provide authorization. Finally, Congress retains the power to order the troops withdrawn by concurrent resolution.
Yet no president has considered the War Powers Resolution binding, nor fully complied with its requirements. Thus, a law meant to decisively scale back executive war powers has become effectively useless. But does this matter? Is it necessary to have a clearly-defined, fully functional framework which requires the president to involve Congress in decisions of war?
Further, the pas de deux of consultation, deliberation, and decision-making between the political branches in a lead-up to war is consistent with the requirements of the Constitution. Fearing an all-powerful executive capable of singlehandedly plunging the nation into senseless war, the Founders intentionally separated the war powers by giving to Congress the power to declare war and to the president, the role of commander-in-chief, once war had been initiated.
Clearly, the War Powers Resolution as it stands is insufficient to ensure that Congress will be involved in the process. If democratic principles of war-making are to be revived, some key policies must be in place.
First, Congress must decide what war actually is. The War Powers Resolution fails to define “hostilities,” and this is a giant loophole through which presidents have become accustomed to slipping unilateral hostile actions. For example, President Obama did not consider the enforcement of a no-fly zone, without troops on the ground in Libya in 2011 to constitute “hostilities” or “war,” as imagined by the law. Long gone are the days of uniformed armies fighting clearly declared wars between states. Instead, modern warfare seems destined to involve such unconventional aspects as civilian rebel groups, unmanned drones, and air strikes. By clearly defining “hostilities” and “war,” Congress asserts its own authority and upholds the democratic process as an effective means of oversight over the wide-ranging technologies and tactics of modern warfare.
Second, Congress should stop providing “blank check” authorizations for military force to the president. Perhaps the best and most recent example is the vague language of the Authorization for the Use of Military Force in 2001, which was best described by Representative Barbara Lee of California as giving the president “the authority to wage war at any time, in any place, for nearly any purpose.” Indeed, the test of time has demonstrated the danger of such broad authority, as the AUMF has been cited as legal authority for a multitude of controversial practices, including the indefinite detentions in Guantanamo Bay and the assassination of U.S. citizen Anwar al-Awlaki. The congressional power to limit presidential authority is meaningless if not exercised, and the failure to exercise such power may have unintended far-reaching consequences.
Lastly, Congress should utilize its most potent tool – the “power of the purse.” The Constitution is clear that the legislative branch controls the borrowing and appropriation of money. Thus, Congress should refuse to allow money to be borrowed for purposes of war, and especially not for military actions in contravention of the War Powers Resolution. In addition to limiting the president’s widespread powers, the requirement of specific revenue for military action would cause both political branches to pause before entering into impulsive or potentially endless war. Further, it would encourage fiscal responsibility and draw much-needed public attention to the truly exorbitant cost of war.
This is the time for elected representatives to re-assert themselves and the voices of the American people into the decision-making process. Rather than enabling the president to unilaterally commit American life and treasure, Congress must set up an effective framework to ensure that even decisions of war are subject to the consent of the governed.
Flower is the legislative director at the Friends Committee on National Legislation. Beavers is the program assistant for foreign policy at FCNL.