War powers compromise

A thoughtful new proposal seeks to improve consultation between the White House and Congress on questions of "significant armed conflict." Since the war question has been a particularly troublesome one in recent years, it merits early and serious consideration by the next Congress and the next president.

The proposal comes from James Baker, who served as secretary of state under President George H.W. Bush, and Warren Christopher, his successor under President Bill Clinton. They were assisted by a panel of other worthies assembled by the Miller Center at the University of Virginia. Their plan would repeal the 1973 War Powers Resolution and replace it with a formal system of consultation between Congress and the executive.

The authors say they have tried to be strictly neutral in their approach, respecting both the Article I powers of Congress under the Constitution and the Article II powers of the presidency. The one constant they found in their review of the long history of the unresolved competing claims of Congress and the White House to primacy in questions of war was the agreed need for more consultation before any decisions are taken.

They propose to give Congress a new joint committee on consultation, with a permanent staff, and with "clear and simple mechanisms by which to approve or disapprove war-making efforts." This would encourage future presidents to keep Congress fully informed on questions that could lead to "significant armed conflict," and make Congress a more effective partner in war decisions.

The president cannot be compelled to consult, but the new approach would make it politically wise for him to do so prior to acting.

An exception is carved out for humanitarian rescues, covert operations and other uses of force where the need for speed or secrecy is overriding.

Many scholars believe the 1973 War Powers Resolution, with its never-invoked legislative veto of presidential war decisions, is unconstitutional. No president has ever fully complied with the law's reporting requirements. Its flaws, instead of resolving the long-standing tension between the legislature and the executive on war powers, create a situation that promotes evasion and undermines respect for the rule of law.

Short of a constitutional amendment, probably nothing can be done to settle, once and for all, where the war-making power resides under our system of government.

As the authors note, the courts have wisely deemed the question a political one. A system of consultation like the one proposed here is probably the best way to build a bridge over the troubled waters that separate Congress and the presidency on the war powers question.