A War Powers Amendment?

Stirling Newberry, whose ideas I often like, has penned an odd one. I think I sort of like the idea behind it, but the execution leaves the lawyer in me very unsatisfied. Here’s his proposal for a War Powers Amendment:

Article 1

It shall require a three fifths vote of the whole of both houses to declare war, or authorize the use of war powers. Congress may revoke a declaration of war, or of any specific war power, by three fifths vote of the whole of both houses, to take effect not less than 30 days from the date of the vote.

Article 2

The authorization for the use of war powers shall expire thirty days from the beginning of a new Congress, unless reauthorized by a majority of the whole of both houses.

Article 3

Should the President use force or fraud directed at the Congress for the purpose of attaining a declaration of war or war powers, he shall be removed following a vote of a three fifths of the Senate, if impeached by the House. The President may appeal this removal to the Supreme Court.

Well.

Art. 1 runs into the problem that we have lots of non-war wars. Also “war powers” – while there is an overly-vague war powers resolution, “war powers” is not a term with a constitutional definition. Are you going to trust courts to define it? Endless wrangles, and always while bullets and worse are flying. The executive will win.

Art. 2 is to me the most interesting, but would only work with a much more robust definition of what uses of force are war powers and what are not (is UN peacekeeping ‘war powers’? Responding to a security council request for troops? Emergency rescue of US citizens in a war zone? Shipping supplies to an ally engaged in a fight? Spying?)

But whatever one thinks of 1 & 2 the third article is a big mistake. Any time you have two procedures for something you have the possibility of people getting into procedural wrangles about which applies, how they differ, etc. If we want to impeach a President, better to have him out than have wrangles and pretenders to the throne. Second, you shouldn’t give the Supreme Court a standardless power of review. According to what standard is this review – de novo? abuse of discretion? What sorts of claims lie – denial of due process? ex parte communications? And having original jurisdiction in the Supreme Court creates some (surmountable but real) difficulties if there is a need to take testimony; the absence of a process for that might lead some to think the review was deferential, like the review of an administrative agency on its own record, or even more deferential than that.

Trying to stop things like the Tonkin Gulf Resolution or the even more open-ended and disasterous Iraq resolution is certainly a good idea, maybe even a great idea. But count this as just a first draft of a long drafting process.

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8 Responses to A War Powers Amendment?

  1. Marc R. says:

    Professor, or Michael, now that I graduated, your post about the two different procedural standards may have an answer within admin law in that the original court would defer to the lowest standard met. Either standard is sufficient, but neither is necessary. That said, giving SCOTUS original jursidiction would seem to negate any administrative agency acting as a reviewing body since I’m not sure it’s possible to remand something “back” to the highest court.

  2. michael says:

    What I meant is that in the absence of any law to apply, SCOTUS might be tempted to model its deferential review on the review an appellate court gives to an administrative agency, or be even more deferential than that. I did not mean to suggest that that there might be an actual agency involved at any step, that wouldn’t make any sense!

  3. Altoid says:

    The general goal is laudable, I agree. But the underlying problems here are two-fold, in my view: faked “evidence” as the casus belli, and a supine Congress. The reaffirmation section addresses the second in theory, but it’s really taken care of already, in theory, through the two-year limit on actual military appropriations.

    The effect of Article 1 would be the effect of the War Powers Act to the nth degree: more executive secrecy, broader claims for inherent executive powers, and other executive-aggrandizing moves that it would be far better not to have ratified by the courts.

    I think I agree with your reaction to Article 3, if I understand it. Impeachment and conviction are impeachment and conviction, period. The court, beyond the chief justice, isn’t involved now and shouldn’t be involved.

    These problems are inherently political in nature and cry out for political solutions that, to me, begin with Congress finding its soul. By design, its interests are not those of the executive. Members need to serve their own institutional and constituent interests, not those of the executive.

  4. Paul Gowder says:

    I agree with your general sense of the matter, Michael.

    In terms of impeachment, I think one good way of handling things instead of article 3 above would be to make it manifestly clear that impeachment doesn’t depend on crime. I.e. “the President may be impeached and removed for any reason that the House and Senate see fit.”

    I also think that 1 and 2 don’t offer sufficient scope for the traditional repulsion of foreign invaders powers. Perhaps an article 4: “Notwithstanding the remainder of this amendment, the President shall have the power to use military force to necessary to repel soldiers from the regular or irregular armed forces of a foreign sovereign from United States territory, or the territory of an allied nation with whom the United States has an operative treaty. This power shall be operative only in cases of actual territorial invasion by forces under the command of sovereign states, and shall not authorize the president to use force outside U.S. and allied territories except to pursue coherent bodies of armed enemy soldiers in flight from U.S. and allied territory.”

    The problems you raise with 2 might similarly be addressed with a provision permitting the U.S. to meet lawful treaty obligations and rescue american citizens using force for a limited period of time.

  5. Paul Gowder says:

    I agree with your general sense of the matter, Michael.

    In terms of impeachment, I think one good way of handling things instead of article 3 above would be to make it manifestly clear that impeachment doesn’t depend on crime. I.e. “the President may be impeached and removed for any reason that the House and Senate see fit.”

    I also think that 1 and 2 don’t offer sufficient scope for the traditional repulsion of foreign invaders powers. Perhaps an article 4: “Notwithstanding the remainder of this amendment, the President shall have the power to use military force to necessary to repel soldiers from the regular or irregular armed forces of a foreign sovereign from United States territory, or the territory of an allied nation with whom the United States has an operative treaty. This power shall be operative only in cases of actual territorial invasion by forces under the command of sovereign states, and shall not authorize the president to use force outside U.S. and allied territories except to pursue coherent bodies of armed enemy soldiers in flight from U.S. and allied territory.”

    The problems you raise with 2 might similarly be addressed with a provision permitting the U.S. to meet lawful treaty obligations and rescue american citizens using force for a limited period of time.

  6. Alan says:

    Defining war powers is really not so difficult and a lot of the US debate is isolated from modern constiutional developments. Denmark’s constitution provides:

    19(2) Except for purposes of defence against an armed attack upon the Realm or Danish forces the King shall not use military force against any foreign state without the consent of the Folketing. Any measure which the King may take in pursuance of this provision shall forthwith be submitted to the Folketing. If the Folketing is not in session it shall be convened immediately.

    Obviously other sections require the king to always act on the prime minister’s advice.

    On the other hand, the Westminster countries like Britain and Australia leave it completely (and outrageously) up to the executive.

  7. Seth Gordon says:

    I mostly agree with Altoid, above.

    What if we amended the Constitution to make somebody other the President be the Commander-in-Chief of the armed forces? On the one hand, this would make it harder for the President to use military posturing for political purposes. On the other hand, it would effectively turn the armed forces into a fourth branch of the government.

  8. DeWalt says:

    …of what value is more ink-on-paper when the ‘government’ freely ignores all the existing constitutional ink-on-paper ?

    As a current example, a Federal Appeals Court just totally ignored & trampled the fundamental ‘law’ of Habeus-Corpus in the Padilla case. Those learned judges/lawyers felt zero pressure to comply with mere ink-on-paper …. and they suffered no practical consequences from their illegal actions — merely a few
    mildly critical harrumphs from isolated media & academic corners.

    Why do lawyers put such faith in ink-on-paper, when it is so easily avoided by those who profession is ink-on-paper ? {…a self-answering question!}

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