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