Fixing How We Go to War

By David S. Broder (THE WASHINGTON POST, 10/07/08):

Just shy of eight years after they squared off in the Florida recount battle, James A. Baker III and Warren Christopher have joined forces to clean up one of the ugly legacies of Vietnam — the misguided piece of legislation called the War Powers Act.

Passed in 1973, when Congress was mightily frustrated with the undeclared war in Southeast Asia, that statute is proof of the adage that hard cases make bad law. Cases don’t come any harder than Vietnam, and the War Powers Act has turned out to be one of the worst bills ever to reach the president’s desk and be signed into law.

Its constitutionality is suspect, but no one has ever found a way to test it in court. Now Baker and Christopher, both former secretaries of state before they became lawyers for George W. Bush and Al Gore, respectively, in the 2000 struggle over Florida’s decisive electoral votes, have found common cause as co-chairmen of a National War Powers Commission created by the Miller Center of Public Affairs at the University of Virginia.

When I went to see the two men during their visit to Washington this week, I found no lingering sense of the partisan animosities that marked their Florida encounter. Instead, they communicated a shared passion to help the next president and Congress find a way to solve a problem that has vexed the capital since the early days of the republic.

The Founders left a ton of confusion about a pretty important question: Who has the authority to make war? Article I of the Constitution gives Congress the exclusive right to declare war, but Article II makes the president the commander in chief. Nowhere does it say where the authority of one stops and the other begins.

The War Powers Act tried to resolve the question by putting a time limit on the president’s ability to deploy troops into a combat zone, but no president has accepted as legitimate that limitation on his authority, and Congress has never tried to enforce it.

Baker and Christopher told me that as they dug into the issue, they and their fellow commission members quickly concluded that there was no way to nudge the Supreme Court into settling the issue. The court has an aversion to arbitrating a “political question” arising from a conflict between the elected branches.

But Baker and Christopher were reluctant to accept the status quo, in part because, as lawyers, it offends them to have a vital area of public policy governed by a law that no one takes seriously.

Instead, they focused on the question of how to encourage substantive discussion between the branches before the weighty decision is made to put troops into combat. Their proposed substitute is called the War Powers Consultation Act.

It calls on the president to consult with key legislators before sending troops into “significant armed conflict,” defined as a situation where fighting may last more than a week. It creates a Joint Congressional Consultation Committee, composed of leaders of both parties and senior members of six key committees, and it guarantees that the committee and its staff have access to all the relevant intelligence the president sees.

It requires Congress to vote up or down on a deployment within 30 days, and it permits a cutoff of funds for deployments if approved by two-thirds of the House and Senate.

That complex procedure, Baker said, is designed to preserve the constitutional authority of both the president and Congress. It avoids some of the practical and legal infirmities of the current War Powers Act. But, as he readily conceded, “You can’t legislate trust,” and without trust, no set of procedures can be guaranteed to work.

It could be argued that if there were trust between the leaders of the elected branches — as there has been for substantial periods of our history but not in recent years — you would need no statute to replace the War Powers Act.

But Baker and Christopher argue that with a new president and a new Congress arriving in January, agreement on a workable substitute for the War Powers Act could, in itself, be a confidence-building step.

I have trouble seeing this as a high priority on the 2009 agenda. But I do think the Florida antagonists have devised a clever way to signal a healthy change toward bipartisanship in foreign policy.