The two came together at the Miller Center at the University of Virginia as part of the "National War Powers Commission" in order to develop a "bipartisan" approach to rectify how America goes to war. Their plan, which would ideally be packaged in the "War Powers Consultation Act of 2009," and would:
- Force the president to consult with Congress before sending American troops into "significant armed conflict," an example of which combat operations lasting more than one week;
- Establish yet another ad hoc committee between the House and Senate of leaders from both parties; and
- Requires Congress to act on a presidential request by voting up or down within 30 days.
If you are familiar with the War Powers Act, then it should be easy to see how much of a failure this new law would be. Which is where Fisher comes in.
Fisher argues that the "report falls short in either offering a practical solution to the war powers debate or protecting the rule of constitutional law. As for giving respect to the three branches, the proposed War Powers Consultation Act heavily favors the executive branch." Fisher first discusses how the report, and supporters of the power of the president to wage war, distorts and destroys the work by the Founders while also taking out of context the words of prominent jurists like John Marshall--in fact, this is a similar line of attack that can be found in political scientist James Pfiffner's new book, Power Play. But to be honest, I have never been a fan of exercises such as these--arguing what the Founders did or did not think. The fact of the matter is we currently have a president with powers that extend far beyond what anyone would have imagined in the 17th or 18th centuries.
Instead, Fisher makes two compelling arguments in the present against this proposal: the establishment of another congressional committee and the prerogative of doing nothing.
Baker and Christopher urge the establishment of a "consultative committee" that is made up of the speaker of the House, the Senate majority leader, the House and Senate minority leaders, and the chair and ranking members of eight different committees. This would give Congress "access to intelligence and a full time staff for studying national security issues," but Fisher argues in reality it would "give a mere handful of members access to intelligence and staff, quite likely with the admonition not to share sensitive information with anyone else." But if history is any guide (like the "Gang of Eight" on intelligence issues), these sorts of committees end up being "at the mercy of executive officials who" decide what information they are willing to share. Furthermore, these committee members were forbidden from taking notes, speaking with their colleagues or staff, or seeking independent verification of the information they were told. Fisher argues that "Congress should not make the same mistake and transfer its war power to a small subgroup of legislators. The war power belongs to the institution as a whole, including its most junior members (emphasis added)."
The second problem is Congress is required to take action on a president's request to use force. The new law would require Congress to vote on a concurrent resolution (which must be passed by both houses but is not sent to the president for his signature). If the concurrent resolution is not passed, Congress could then put together a joint resolution of disapproval, which does go to the president for his signature. Fisher argues that first, Congress should not have to vote twice to make the point that it does not want war, and second, that the joint resolution could be vetoed by the president, thus forcing Congress do muster the 2/3 majority to override the veto. As others pointed out, in today's era of high political polarization, it is going to be difficult for Congress to ever get the numbers to override. But I think more to the point, as Fisher aptly points out, this scenario places the war power in the hands of the president, and not the Congress. The president goes to Congress to ask its approval to commit forces into significant armed conflict, and then Congress may or may not approve. This flies in the face of the Constitution, where the war power is firmly grounded in Article I. Thus the Congress has every right under its prerogatives not to act.
But there is nothing unconstitutional about Congress controlling its prerogatives by doing nothing. If the president submits a proposal to use military force and Congress ignores it, if the president requests funds to start or continue a war and Congress provides none, then Congress has decided. No offensive actions are allowed.
And that is precisely right. It is no mystery how this special commission came to the conclusion that the war power can only be tempered when Congress gets into the business of signing off on the committal of US forces--this has every mark of Secretary Baker, who was first part of the Reagan administration and the mantra that success only happens when a powerful presidency is restored. Fisher admonishes this thinking, and consistent with nearly everything he has written in the past, demands that Congress assert itself as the "First Branch" of government--to jealously guard its prerogatives in the way that the president guards his. Only then will the use of force come back into the constitutional fold in the way the Founders believed it to be. But given the successive string of terrible congresses we have gotten going back to the 107th, it isn't likely to happen anytime soon.
