Tuesday, November 6, 2007

Congress should approve new war powers bill

I agree with George Will, surprisingly, on a major Congressional bill.

Will says the best way to prevent war with Iran is for Congress to approve Rep. Walter Jones’ Congressional War Powers Resolution. Yes, it’s shocking to agree with Will, but he’s got some very good points

Congress can, however, put the Constitution's bridle back on the presidency. Congress can end unfettered executive war-making by deciding to. That might not require, but would be facilitated by, enacting the Constitutional War Powers Resolution. Introduced last week by Rep. Walter B. Jones, a North Carolina Republican, it technically amends but essentially would supplant the existing War Powers Resolution, which has been a nullity ever since it was passed in 1973 over President Richard Nixon's veto.

Mr. Jones' measure is designed to ensure that deciding to go to war is, as the Founders insisted it be, a "collective judgment." It would prohibit presidents from initiating military actions except to repel or retaliate for sudden attacks on America or American troops abroad, or to protect and evacuate U.S. citizens abroad. It would provide for expedited judicial review to enforce compliance with the resolution and would permit the use of federal funds only for military actions taken in compliance with the resolution.

It reflects conclusions reached by the War Powers Initiative of the Constitution Project. That nonpartisan organization's 2005 study notes that Congress' appropriation power enables Congress to stop the use of force by cutting off its funding. That check is augmented by the Antideficiency Act, which prohibits any expenditure or obligation of funds not appropriated by Congress, and by legislation that criminalizes violations of the act.

At the same time, he says a Congressional failure to act would “merit its own marginalization.’ If this bill is being pushed by a Republican, and can be sold as a claim-back of legislative powers from the executive, maybe it has an outside shot of getting a veto-proof majority. I won’t hold my breath over that, but, it’s worth a shot.

Problem is, though, this goes back to my takeoff on an old cliché.

That cliché says that Congress contains 535 Secretaries of State. True, but it often contains zero Secretaries of Defense when push comes to shove.

What Will doesn’t mention is that the original War Powers Act is a nullity in part because Congress has never invoked it, and has rarely passed even lesser control resolutions about specific conflicts. If Jones’ new legislation has a similar enabling mechanism, it will become just as much a nullity until and unless Congress is willing to take full legislative responsibility for war-making decisions: both in restraining, or supporting, executive decisions, and accepting its part in responsibility for the results.

Update, per Tom’s comment: Tom, the original War Powers Resolution has similar, if less explicit, language, regarding troops under threat:
(c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces." (My emphasis.)

The "evacuation of U.S. Citizens" is added in Jones' bill.

At the same time, it has a "funding limitation" paragraph not in the original:
(c) Funding Limitation- Unless one of the numbered paragraphs of subsection (b) applies, after the expiration of the period specified in that subsection (including any extension of that period in accordance with that subsection), funds appropriated or otherwise made available under any law may not be obligated or expended to continue the involvement of the Armed Forces in the hostilities. This subsection does not, however, prohibit the use of funds to remove the Armed Forces from hostilities.

So, that's actually a strengthening of the original WPA.

Rather than a one-shot Petraeus "surge" report, in the absence of a declared war, we'd have the requirement for regular executive updates in exchange for continued funding.

Here’s Jones’ bill; here’s the original War Powers Resolution.