When I asked recently about who really holds the power in war, I wasn’t trying to stump anyone. For the founders who shaped our Constitution, it was a complex issue.
They decided that the two main branches of government should share this power. Congress was assigned the task of declaring war and setting the rules for military operations. Meanwhile, the President would step in as Commander-in-Chief when the military was called to action. Their goal was to prevent either branch from monopolizing warfare and to keep each other in check against reckless military action abroad.
However, the second half of the 20th century introduced new challenges, especially with commitments to allies like NATO during the Cold War and the emergence of various multilateral treaties. The rise of global terrorist organizations expanded our military footprint and raised questions about how Congress should effectively deploy troops.
Amid the contentious atmosphere of the Vietnam War, Congress aimed to strengthen oversight of the presidency. The 1973 War Powers Resolution was a response to President Nixon’s veto. This legislation mandated that the President needed to end military conflicts within 60 days unless Congress had declared war. Congress could expedite its withdrawal through a concurrent resolution that didn’t need the President’s approval. It could also expand military actions through a joint resolution, enabling the use of military force.
Nixon, however, deemed this resolution an unconstitutional infringement on presidential powers, igniting ongoing debates around how to modernize war powers in a way that gains broader support.
A significant initiative was the establishment of the National Commission on Forces in 2007, sponsored in collaboration with respected legal institutions like Rice and Stanford. The 12-member panel, led by former secretaries James A. Baker III and Warren Christopher, held seven meetings over just over a year and consulted with over 40 witnesses.
The Final Report released in July 2008 proposed that the War Powers Resolution should be repealed and replaced with the War Power Consultation Act of 2009. This act aimed to form a 20-member joint committee for military consultations, with the House Speaker and Senate majority leaders alternating as chairs. This committee would include key figures from finance and diplomatic relations, as well as minority leaders from both chambers.
The Joint Committee would be tasked with reviewing any military commitment extending beyond a week, requiring a classified report from the President and deliberating potential military actions in closed sessions.
According to their proposal, if any house of Congress rejected a concurrent resolution approving military action within 30 days after a conflict began, a joint resolution against the President’s actions could then be introduced. To override a presidential veto, a two-thirds majority vote from both chambers would be necessary.
In 2014, Senator Tim Kaine (D-Va.) introduced the proposed War Power Consultation Act, alongside co-sponsors John McCain (R-Ariz.) and Angus King (I-Maine). Yet, the bill failed to progress. It seemed to favor executive power and garnered little traction on Capitol Hill, perhaps unsurprisingly given that six of the twelve committee members were former executive officials, while only three had congressional backgrounds, the rest being scholars.
It seems we’ve come to see that members often hesitate to oppose their party’s President or the minority party’s leadership, which is, well, somewhat predictable.
Since Nixon’s administration, there has been a pattern of ignoring or dismissing Congress’s resolutions, apart from standard reporting obligations. These reports, if taken seriously, could lay the groundwork for more substantial discussions and debates within Congress and among the American public about how to responsibly manage military engagements. While the War Powers Resolution might be somewhat outdated, it could still hold potential for fostering future cooperation and agreements between the branches.
