War Powers Resolution: Articles and Testimony

“The Baker-Christopher War Powers Commission,” 39 Pres. Stud. Q. 128 (2009). In July 2008, the National War Powers Commission recommended the repeal of the War Powers Resolution and its replacement by a proposed War Powers Consultation Act. Co-chaired by former Secretaries of State James A. Baker III and Warren Christopher, the commission report promised “equal respect” to the legislative and executive branches. In fact, it greatly strengthens the President’s capacity to initiate war and weakens congressional and public control. Instead of addressing the framers’ fear of placing the war power in the hands of a single executive, the report claims that the U.S. Constitution is “ambiguous” about war powers and that federal courts “for the most part” have declined jurisdiction over war powers cases. Both assertions are false.
“When the Shooting Starts,” Legal Times, July 28, 2008, p. 44. The Baker-Christopher commission recommends that Congress pass legislation guided by the principles of the rule of law and equal respect for all three branches. The proposed statute would require Congress to vote on a non-binding resolution of approval for any significant use of military force. If that failed, any lawmaker could require Congress to vote on a joint resolution of disapproval, which would be subject to a presidential veto, requiring a two-thirds majority in each House to stop a presidential war. The article concludes that the mechanism would weaken the legislative branch, play to executive strengths, and undercut popular government and the rule of law
Statement before the House Foreign Affairs Committee, “War Powers for the 21st Century: The Constitutional Perspective,” April 10, 2008. This testimony analyzes H. J. Res. 53 and generally holds that it succeeds in correcting serious deficiencies in the War Powers Resolution (WPR) of 1973. The bill is designed to safeguard and reinforce the constitutional system, representative government, and democratic values, whereas the WPR failed in its stated purpose to “fulfill the intent of the framers” and ensure “collective judgment” of the legislative and executive branches. This testimony disagrees with language in H. J. Res. 53 regarding military actions pursuant to resolutions passed by the UN Security Council, creation of a consultative committee in Congress, and congressional reliance on judicial review.
“Thomas F. Eagleton: A Model of Integrity,” 52 St. Louis U. L. J. 97 (2007). This article describes the leadership of Senator Eagleton from 1971 to 1973 with the War Powers Resolution. He backed a bill that closely tracked the intentions of the framers, permitting unilateral presidential action only under specified conditions (e.g., repelling sudden attacks). The House passed legislation placing no such restrictions but relied on presidential reporting. The bill that emerged from conference committee so favored presidential power, in Eagleton’s view, that he opposed it and spoke strongly for constitutional principles and legislative prerogatives. The article concludes that Senator Eagleton “had taken an oath to support and defend the Constitution and that dedication provided all the lodestar he ever needed.”
“The War Powers Resolution: Time to Say Goodbye,” 113 Pol. Sci. Q. 1 (1998), Louis Fisher and David Gray Adler. Although the media and many members of Congress described the War Powers Resolution (WPR) of 1973 as strong evidence of legislative “reassertion,” the statute represented a clear surrender of legislative power to presidential initiatives to use military force anywhere in the world, for any reason, for up to 90 days. This article begins by describing the constitutional values and objectives of the framers. It then explains why passage of the WPR, with its many compromises, ambiguities, and contradictions, violates the framers’ intent and the Constitution’s promise of republican government.
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