Our Framers could not have foreseen the present age of nuclear missiles and cataclysmic terrorism. But they understood political accountability, and—as their deliberations in Philadelphia attest—they knew that sending Americans into battle demanded careful reflection and vigorous debate. So they created a simple means of ensuring that debate: in Article I, Section 8, of the Constitution they gave Congressthe power to declare war.
Declarations of war may seem to be relics of a bygone era—a time more deeply steeped in ritual, when ambassadors in frock coats delivered sealed communiqués to foreign courts. Yet a declaration of war has a great deal to recommend it today: it forces a deliberate, public conversation about the reasons for going to war, the costs, the risks, the likely gains, the strategies for achieving them—all followed by a formal vote.
Debates over war powers are nothing new. A recent book by the University of California at San Diego political scientist Peter Irons, War Powers, concludes that although the president has steadily accumulated de facto war powers, the Framers clearly—and correctly—intended to locate those powers in Congress. A report issued this year by the Constitution Project, a group of eminent academics and policymakers assembled by Georgetown University's Public Policy Institute, sounds the same note. For these experts and countless other lawyers and constitutional scholars, the solution is for Congress to step up and reassume primary responsibility for sending the nation to war.
The problem is that Congress wants power without responsibility. Most legislators fear the political costs of bucking the commander in chief when the nation appears under threat. Others worry that the president's control of vital intelligence places him in a far better position to judge the need for war. The obvious answer is to demand that the information be shared, but here the president can claim that a debate risks spilling secrets to the enemy.
As a result, Congress has often preferred form over substance. Early in the history of the Republic, when President James Madison asked for a declaration of war against Algiers to stop the Barbary pirates, Congress declined, but authorized him to use "such of the armed vessels of the United States as may be judged requisite." Over time such authorizations have become fast tracks to war. Congress votes up or down on the president's often vague military proposals, without accepting responsibility for judging the objectives of the war and the plans for waging it.
In the wake of the Vietnam War, Congress tried to fix this problem by passing the War Powers Act, which states that troops sent into combat by the president must be withdrawn within sixty days unless Congress specifically approves an extension of combat. Trouble began immediately. Richard Nixon vetoed the act; when Congress overrode the veto, he simply reaffirmed his right to go ahead with war regardless of what Congress said. But Nixon's concerns were unwarranted: the War Powers Act was much more a symbolic assertion of congressional power than an actual constraint on the executive. It is naive to believe that any Congress would vote to pull back troops just sixty days after they'd been deployed.
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.