Author Archives: Michael Froomkin

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.