How America goes to war

How America goes to war

The Miller Center's National War Powers Commission addressed a fundamental problem that's back in the news

Declaration of War against Japan
The December 8, 1941, Declaration of War against Japan

Congress last declared war on June 4, 1942, when it recognized Hungary, Romania, and Bulgaria—Axis powers under the control of Nazi Germany—as enemies in World War II. 

United States involvement in the Korean War began with a United Nations Security Council resolution on June 27, 1950. More than 54,000 Americans died in Korea; another 58,000 perished in Vietnam over the course of more than two decades. U.S. involvement in Southeast Asia covered the Eisenhower, Kennedy, Johnson, Nixon, and Ford presidencies—all without a formal declaration of war from Congress. Other military actions since the Second World War include the Bay of Pigs invasion, the invasion of Grenada, the invasion of Panama, the Gulf War, actions in Somalia, Bosnia-Hertzegovina, Kosovo, and wars in Iraq and Afghanistan.

THE LATEST graphic
December 8, 2018 in the Washington Post

By 1973, Congress responded to the Vietnam War with the War Powers Resolution in order to "to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities . . ."

The result, however, was more confusion, and the sense that Congress merely issues the president a blank check to use military force when, where, and for however long he chooses.

The relevant law now on the books — the War Powers Resolution of 1973 — tends to be honored in the breach rather than by observance.

James A. Baker III and Warren Christopher, Co-Chairs, National War Powers Commission
Warren Christopher and James Baker at a table
Former Secretaries of State Warren Christopher (left) and James Baker co-chaired the Miller Center's bipartisan National War Powers Commission which began its work in 2007

 

In response, former Secretaries of State James A. Baker III and Warren Christopher agreed to co-chair the Miller Center’s bipartisan National War Powers Commission, beginning work in 2007. Over 14 months, the commission met seven times, interviewing more than 40 witnesses. The commission then issued its unanimous report to the President and Congress, calling for the repeal and replacement of the War Powers Resolution of 1973 with the proposed War Powers Consultation Act. In the following months, Secretaries Baker and Christopher briefed President Obama and testified before the House Foreign Affairs Committee and the Senate Foreign Relations Committee about the proposed legislation.

READ MORE: Baker and Christopher in the New York Times, July 8, 2008

READ MORE: The Miller Center's William Antholis and Jeff Chidester discuss the National War Powers Commission and the War Powers Consultation Act in POLITICO.

As the world becomes more dangerous and complex, and demands continue to increase for American leadership, we need to establish a better system of communication between the president, Congress and the American people, especially on decisions of war and peace.

U.S. Senator Tim Kaine

Senators John McCain [R-AZ] and Tim Kaine [D-VA] took up the cause and introduced the War Powers Consultation Act of 2014, based on the work of the Miller Center's commission. So far, the bill has failed to secure passage, but Senator Kaine continues to work across the aisle to deliver this much-needed legislation.

On Monday, April 16, Senator Bob Corker [R-TN], chairman of the Senate Foreign Relations Committee, joined with Kaine to propose a new authorization for the use of military force (AUMF) for ongoing operations against the Islamic State, al-Qaeda, the Taliban, and affiliated groups. The previous AUMF dates back to 2001. The new proposal would mandate that the president notify Congress within 48 hours of the engagement of new forces, after which the legislature would have 60 days to object.


More details on the National War Powers Commission

Along with Secretaries Baker and Christopher, commission members included: Slade Gorton, former U.S. Senator from Washington; Lee H. Hamilton, former U.S. Representative Indiana; Carla A. Hills, former U.S. Trade Representative; John O. Marsh, Jr., former Secretary of the Army; Edwin Meese, III, former U.S. Attorney General; Abner J. Mikva, former Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit; J. Paul Reason, former Commander-in-Chief of the U.S. Atlantic Fleet; Brent Scowcroft, former National Security Advisor; Anne-Marie Slaughter, then-Dean of the Woodrow Wilson School of Public and International Affairs at Princeton University; and Strobe Talbott, President of the Brookings Institution.

Pulitzer Prize-winning historian Doris Kearns Goodwin served as the commission’s historical advisor. John T. Casteen, III, then-President of the University of Virginia, and David W. Leebron, President of Rice University, served as ex officio members.

John C. Jeffries, Jr., the Emerson Spies and Arnold H. Leon Professor of Law of the University of Virginia School of Law, and W. Taylor Reveley, III, President and John Stewart Bryan Professor of Jurisprudence at the College of William & Mary, served as Co-Directors of the Commission. The War Powers Consultation Act:

  • Provides that the president shall consult with Congress before deploying U.S. troops into “significant armed conflict”—i.e., combat operations lasting, or expected to last, more than a week.
  • Defines the types of hostilities that would or would not be considered “significant armed conflicts.”
  • Creates a new Joint Congressional Consultation Committee, which includes leaders of both Houses as well as the chair and ranking members of key committees.
  • Establishes a permanent bipartisan staff with access to the national security and intelligence information necessary to conduct its work.
  • Calls on Congress to vote up or down on significant armed conflicts within 30 days.

“This statute does not attempt to resolve the constitutional questions that have dominated the debate over the war powers, and does not prejudice the president or Congress their right or ability to assert their respective constitutional war powers,” said Secretary Baker when the report was released. “What we aim to do with this statute is to create a process that will encourage the two branches to cooperate and consult in a way that is both practical and true to the spirit of the Constitution.”

“We have tried to be as specific as possible in this report and in this legislation,” said Secretary Christopher. “We have defined the kinds of armed conflict that would be covered by the statute, and have laid out a clear course of action for both the president and Congress that is practical, constructive and deliberative.”

The principal staff members of the Commission were: Andrew J. Dubill, Staff Director of the Commission; Matthew T. Kline, Counsel to Secretary Christopher; John B. Williams, Policy Assistant to Secretary Baker; Juliana E. Bush, Policy and Planning Coordinator; and W. Taylor Reveley, IV, Coordinating Attorney for the Commission and Associate Director of the Miller Center.

The James A. Baker, III Institute of Public Policy at Rice University, the Freeman Spogli Institute for International Studies at Stanford University, Stanford Law School, the University of Virginia School of Law, and the William & Mary School of Law served as partnering institutions.