The War Powers Act was a halfhearted effort to counter presidential unilateralism. The Framers imagined a more solemn act—a formal congressional process and declaration that would be far more difficult for the president to ignore. We propose a new law that would restore the Framers' intent by requiring a congressional declaration of war in advance of any commitment of troops that promises sustained combat. The president would be required to present to Congress an analysis of the threat, specific war aims, the rationale for those aims, the feasibility of achieving them, a general sense of war strategy, plans for action, and potential costs. For its part, Congress would hold hearings of officials and nongovernmental experts, examine evidence of the threat, assess the objectives, and explore the drawbacks of the administration's proposal. A full floor debate and vote would follow.
In the case of a sudden attack on the United States or on Americans abroad, the president would retain his power to repel that attack and to strike back without a congressional declaration. But any sustained operation would trigger the declaration process. In other words, the president could send troops into Afghanistan to hunt down al-Qaeda and punish the Taliban in response to 9/11. But if he planned to keep troops there to unseat the government and transform the country, he would need a congressional declaration. (Without one, funding for troops in the field would be cut off automatically.)
This process would put considerable pressure on the president to develop his case with far greater care than has been the norm over the past fifty years. And by normally requiring legislators to act before troops are in the field, it would also help save them from a natural propensity to duck their constitutional duty.
Passing this legislation might not be easy. But the time is right. Liberals and conservatives alike have become increasingly concerned about the carelessness and costs of wars over the past forty years. A law that established a clear and solemn process for taking the nation to war, while acknowledging the joint responsibility of Congress and the president, could command broad support—especially if it were framed as a return to our constitutional roots. Moderates and liberals would presumably go along. The bill would satisfy their concerns about how easily the United States has gone to war, with subsequent regrets about either the war itself or how it was fought.
But in the wake of the Iraq War such a law might also appeal to many conservatives and neo-conservatives—particularly those who have come to feel that the United States is not getting the foreign-policy results it should, despite its awesome military power. Since the Vietnam War, hawks have felt that we tend to lose wars not on the battlefield but at home. The public, they correctly argue, becomes disenchanted with combat as casualties and costs mount, particularly if no steady progress toward victory can be seen. Demands to bring the troops home begin. The enemy becomes emboldened, and we begin to lose—first psychologically and then literally.
But a more public vetting of the decision to go to war, culminating in a solemn declaration of war by Congress, would most likely ensure stronger public support for the war, by involving the people in the decision and assuring voters that the war had not been launched hastily or under false pretenses. Setbacks and sacrifices might be less surprising and more easily accepted. Because the declaration process would address problems beforehand, it would help us win wars once they started.
The process and the declaration itself would strengthen American credibility—and negotiating power—in the diplomatic run-up to war. Troublemakers abroad have seen the pressure that our government feels to cut and run when conflict turns ugly. Beyond that, many have doubted that the White House would follow through on its threats at all. Saddam Hussein apparently didn't think either President Bush would have the support to attack him. Nor did the Haitians think President Clinton had the stomach for war after he precipitately yanked U.S. troops out of Somalia. But if a president ran the declaration gauntlet and built public support, he would gain enormous credibility for his threats.
And in those cases where the president was unable to persuade Congress to make war, the United States would almost always be better off. The legislation we propose would not diminish the president's considerable stature as commander in chief as he made his case to Congress. If his arguments still failed, the case could not have been very compelling. Far better if we knew that before the killing began.
Today a transportation bill gets more deliberation than a decision to send American troops to war. It seems safe to assume that this is not what the Framers intended. They worked hard to ensure that the power to spend American lives and treasure be exercised collectively and wisely. Their solution is written into the Constitution itself. Returning to the Constitution's text and making it work through legislation requiring joint and deliberate action may be the only way to give the decision to go to war the care it deserves.