W&M's Reveley and Fisher Each Play Role in War Powers Commission

Last week the War Powers Commission, an impressive bipartisan group consisting of two former Secretaries of State, former members of Congress, a former Attorney General, a former National Security Advisor and others, released their recommendations for the repeal of the War Powers Resolution of 1973 and its replacement with the Commission’s War Powers Consultation Act. Steering clear of the contentious question of the constitutional roles of each branch, the Consultation Act is much more a functional political solution to the war powers question than a formal declaration of the proper distribution of war powers amongst the branches. The very readable report contains a short summary of War powers conflict in American history, a critique of the War powers resolution, and arguments for the Commission’s War Powers Consultation Act along the proposed bill’s text. Taylor Reveley, war powers scholar, former Dean of W&M Law School, and current interim President of the College of William and Mary, acted as co-director of the Commission while Lou Fisher, a constitutional law scholar with the Law Library of Congress and Visiting Professor at W&M Law, appeared as an expert before the Commission.

Democrats, Republicans, proponents of a powerful, exclusive, or unitary executive, and those who argue for an increased role of Congress in decisions relating to war and peace can all agree that the War Powers Resolution has been utterly ineffective in its attempt to formalize the balance of power between the executive and legislative branches in a decision to enter armed conflict. In the words of the Commission, “Few would dispute that the most important decisions our leaders make involve war. Yet after more than 200 years of constitutional history, what powers the respective branches of government possess in making such decisions is still heavily debated.” The War Powers Consultation Act would attempt to cure this instability by instituting a procedure that guarantees the participation of both the legislative and executive branches in any decision on the introduction of American troops into “significant armed conflict”

By way of a hasty overview of the proposed bill, the act would mandate that prior to the introduction of troops into significant armed conflict, defined as any combat operation lasting-or expected to last- more than a week,(the definition of “significant armed conflict” does not include the President’s duty to repel attacks, humanitarian acts, or limited acts of reprisal) the President must first consult with the newly created Joint Congressional Consultation Committee(consisting of the Speaker of the House, Majority leader of the Senate, Minority leaders of both the House and Senate, and the Chairman and ranking member on certain House and Senate committees) and continue consulting with the group throughout the duration of the conflict. Where required for secrecy, the President can wait three days after the initiation of a military mission before consulting the Committee. If Congress has not expressly authorized the war, it must, within 30 days, vote on a concurrent approval resolution. If the approval resolution fails, any member of Congress may introduce a resolution of disapproval, which if passed goes to the President for his signature. If the President vetoes the disapproval, Congress may then override that veto. This section is the meat of the Consultation Act and attempts to force Congress to act, and take a position, on the deployment of American troops. One of the chief critiques in regard to the War Powers Resolution was that Congress could oppose the President’s action simply through inaction. The report is available here for further review.

Overall the Bill is a prudent and well reasoned response to the useless and embarrassing War Powers Resolution, and a potential solution to the uncertainty the currently clouds important decisions on war and peace. The Bill is, however, open to criticism. Much like the failed War Powers Resolution, the Act defines the seriousness of conflict in terms of the length of deployment. Why not define significant armed conflict in terms of troop numbers rather than by length of deployment? This would leave the President free to pursue small covert operations without the formal consent of Congress, while mandating that any major deployments, no matter how short in duration, receive the consent of Congress. Second, the proposed bill could very well leave us in the same uncertainty that we currently see. Members of Congress seem to be hesitant o take clear stands on potential military campaigns. If, for instance, the approval resolution is defeated because not enough members are willing to affirmatively display their support for the introduction of troops, and then the subsequent disapproval resolution is defeated because not enough members are willing to affirmatively display their opposition to the introduction of troops (a scenario easily pictured) where are we left? We are left exactly where we are now; with Congressional inaction slowly eroding what little war powers the legislative branch has left.

Posted by Todd Garvey

Forecasting the Future of Heller

Of the many questions that the Supreme Court’s first thorough analysis of the Second Amendment in over 50 years raises, one of the most interesting is the interplay between the scope of review to be applied in future challenges of gun regulations, and the prospect of incorporating the newly established individual right to keep and bear arms against the states. The Court in D.C. v. Heller last week held that the Second Amendment protects an individual’s right to keep and bear arms apart from any connection to a militia. What we do know from Heller is that an outright ban on keeping a gun at home for the purposes of immediate self defense violates the Second Amendment. We also know that federal regulations which prohibit a convicted felon or the mentally ill from owning a gun are likely constitutional. What we don’t know, is where, within these two extremes, the Second Amendment draws the line between reasonable regulation and impermissible infringement on an individual right. Unfortunately, the Court chose not to present us with a standard of review for the many challenges to gun regulations that are to come. (Challenges have already been filed in San Francisco and Chicago.)

Many commentators have quickly brushed aside the next step of incorporation as inevitable. Yet, no where in the decision does the Court hint at incorporation, nor does the court classify the individual right to keep and bear arms as “fundamental”. Fundamental rights are incorporated through the Fourteenth Amendment to apply against the states- the fundamental right to free speech and the freedom from unreasonable search and seizure for example. (See e.g. Duncan v Louisiana: defining the standard for incorporation as those “fundamental principles of liberty and justice.” Additionally, fundamental rights receive the vast protections of strict scrutiny analysis when statutes infringing on the right are challenged, i.e. the statute must be necessary to achieve a compelling government interest.

If the individual right to keep and bear arms is a fundamental right, as many think it is, than the Second Amendment will surely be selectively incorporated to apply against the states AND, in accordance with other fundamental rights, receive the protections of strict scrutiny. If this is the case, the inevitable upcoming challenges to state and federal gun regulations across the country should be largely successful. Very few statutes can survive the strict scrutiny analysis which has a reputation for being “strict in theory, but fatal in fact.” While Justice Scalia made clear that most licensing requirements probably do not violate the Second Amendment, what will be the fate of more substantive regulations on the possession of weapons?

If the individual right to bear arms is not a fundamental right, and is instead categorized as some lesser protected right, incorporation is not so certain. The right to bear arms is unlike many of the other procedural rights that the courts have incorporated through the due process clause of the 14^th Amendment. Rights that have previously been incorporated tend to pertain to the individuals relationship with government, many procedural rights for example. Perhaps the best analogy for the right to a gun is to the right to speak freely, but even so, freedom of speech has been characterized as a fundamental right. If not classified as a fundamental right, courts must answer the incorporation question of whether a state law regulating gun possession deprives an individual of life, liberty, or property, without due process of law? Yet, if the Second Amendment is not incorporated the decision in Heller will be entirely eviscerated, because most gun regulations are state or municipal laws. These laws would remain untouched by an unincorporated Second Amendment.

Heller holds that the Second Amendment protects an individual right to a gun unconnected to membership in a militia. It will take another round of litigation to ascertain the true character of this newly protected, but always existing, right. If the right is fundamental it will be incorporated and should receive strict scrutiny, if this is the case state gun laws will fall. If the right is not fundamental, and is potentially not incorporated, the decision will only affect federal laws, and even then the effect will be limited as most federal gun laws pertain only to the sale and transport of weapons. Heller will either mean everything (fundamental and incorporated) or nothing (lesser right and unincorporated), or as usual….something in between. Perhaps the most likely outcome, unfortunately, will be the evolution of a complicated and ambiguous Second Amendment jurisprudence consisting of various tiers of protection much like we see in today’s free speech analysis.

District of Columbia v. Heller

Posted by Todd Garvey