OPINION: It is time to replace the War Powers Act of 1973

Many Democrats and some Republicans expressed alarm [in late June of this year] when President Donald J. Trump ordered attacks on Iran’s nuclear facilities. Most Americans agree that Iran shouldn’t develop nuclear weapons, but was joining Israel in attacking Iran the best way to stop it? Would the strikes risk a wider Middle East war? Should Congress have been involved in the decision? The question is as old as the American republic: Who should decide whether to engage U.S. armed forces in combat? The Constitution gives Congress the power to declare war but makes the president the commander in chief of the military. It’s inevitable there will be conflicts over when Congress should get involved and when the president can act on his own to keep the country safe. Congress tried to resolve the dilemma with the [War Powers Resolution, commonly called the War Powers Act], which we passed in 1973. Responding to expansion of the Vietnam War, the law required presidents to consult with Congress before engaging the military in battle, and it gave Congress the authority to reject the president’s actions after the fact. It passed with bipartisan support over a veto by President Richard Nixon. But presidents from both parties have generally ignored the law, typically arguing that its limits on their powers are unconstitutional. It’s also vague and doesn’t clearly prescribe when congressional action is required. Congress has rarely forced the issue, and the courts have usually declined to get involved. We have a War Powers Act on the books, but it has no practical effect on our leaders. As a result, America continues to fight undeclared wars and engage in military adventures that may not have the clear support of the American people. Congress hasn’t formally declared war since World War II, yet the Korean and Vietnam wars, which were never declared, together caused nearly 100,000 U.S. deaths. Since Vietnam, we’ve engaged in military action in Panama, Grenada, Bosnia, Iraq, Afghanistan, Syria, Libya, Yemen, and elsewhere. In some instances, presidents sought and received congressional authorization. In others, they did not. Nearly 20 years ago, I was part of an effort to resolve this dilemma. Convened by the Miller Center at the University of Virginia, the bipartisan National War Powers Commission was chaired by former two former secretaries of state, Warren Christopher and James A. Baker III. The proposal that we developed and unanimously approved would have required presidents to consult with a set group of legislators from both parties before initiating military action that would last longer than a week, with limited exceptions. Congress would then have 30 days to go on record with its approval or disapproval. It would also have created a permanent joint committee of Congress to monitor war powers decisions. Legislation to enact the plan, the War Powers Consultation Act, was introduced in 2014 by Sens. John McCain, a Republican, and Tim Kaine, a Democrat, but it failed to pass. What we proposed isn’t perfect, and it doesn’t resolve the constitutional questions about the limits of presidential and congressional power; only the courts can do that. But it would provide greater clarity about what happens when presidents order military action. It would promote much-needed consultation between the president and the Congress. Importantly, it would be unlikely to be ignored. The recent attacks on Iran may have ended [with no American casualties and no wider regional conflict ensuing], but what Warren Christopher and James Baker wrote in 2008 remains true: “When it comes to war, Americans deserve better than a law that is ineffective and ignored.” Deciding when to send our men and women in uniform into combat is the most consequential decision that our government can make. The American people deserve to know that their views, as expressed through Congress, will be considered in such life-and-death decisions.     

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Lee Hamilton, 94, is a senior advisor for the Indiana University (IU) Center on Representative Government, distinguished scholar at the IU Hamilton Lugar School of Global and International Studies, and professor of practice at the IU O’Neill School of Public and Environmental Affairs. Hamilton, a Democrat, was a member of the U.S. House of Representatives for 34 years (1965-1999), representing a district in south-central Indiana.