Dahlia Lithwick on the Battle Over War Powers

What can you do with a Congress that does nothing? A blue-ribbon commission headed by former secretaries of State James Baker and Warren Christopher suggested last week that the best solution to the problem of an overreaching wartime Executive and a supine wartime Congress is "more meaningful consultation between the president and Congress on matters of war." In a 72-page proposal to overhaul the 1973 War Powers Act, they essentially demanded that Congress grow a spine. As this is a surgical rather than a legislative proposition, it is unclear whether the proposed reforms can really get the job done.

Congress passed the War Powers Act after Presidents Lyndon Johnson and Richard Nixon went to war in Vietnam without a congressional declaration. The law gave the president 90 days after introducing troops into hostilities before congressional approval was needed. In the intervening years, the law has had all the legal force of a doily. It has never been formally invoked, presidents of both parties have declared it unconstitutional and Congress has refused to force the issue. Successive White Houses have filled that breach with an ever more expansive reading of Article II, Section 2, of the Constitution, which provides that "The president shall be Commander-in-Chief of the Army and Navy of the United States." Many read it to mean that Congress is a constitutional bathmat.

Technically the Congress is not a bathmat. Indeed, the constitutional grant of war powers to Congress is generous, including the power "to regulate Commerce with foreign Nations," "raise and support Armies," "provide for the common Defense" and even, um, "declare War." But Baker and Christopher began their constitutional analysis from the premise that "the Constitution provides both the President and Congress with explicit grants of War Powers" and went on to divvy them up from there. Consultation between the branches is the solution, not Executive deference to Congress.

The proposed changes are better than nothing. New fixes require the president to consult with Congress before deploying troops into "significant armed conflict" (i.e., lasting more than a week) and require consultation in covert operations or emergency circumstances after three days. The commission recommends a new Joint Congressional Committee. But the commission all but disregards the Framers' concern that Congress be given the ultimate authority over matters of war and peace. As James Madison wrote to Thomas Jefferson, "The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the Legislature."

The Baker-Christopher report teems with optimism that Congress, given a "meaningful" opportunity to consult with the president, might opt to act as a check on him. In his new book, "Law and the Long War: The Future of Justice in the Age of Terror," Benjamin Wittes of the Brookings Institution characterizes Congress's recent record on terror legislation as "desultory, reactive, unimaginative" and worse. Still, Wittes argues forcefully for a more engaged, accountable Congress. The commission, too, seems to believe that with a little more cross talk, Congress might awaken from its slumber and involve itself in our wars.

But Congress is always too deferential, too credulous and too timid to check a strong president in wartime, and only ever speaks out after the war has become unpopular. Congress will always offer up a tiny little authorization to use force, and stand by as that authorization swallows up several countries, many years and thousands of dead soldiers. Our war-powers problems lie not in the failure of checks and balances, but in the fact that Congress is invariably comfortable opposing wars only in hindsight.

This leads to the second mistaken premise behind the War Powers Commission: its belief that the core failure of the War Powers Act lay in its poorly drafted, ambiguous language. But consider the Foreign Intelligence Surveillance Act—the 1978 wiretapping law that made it a felony to engage "in electronic surveillance under color of law except as authorized by statute." That language is perfectly clear, at least for lawyers, and yet last week the Senate voted to clarify it again. Now the same surveillance that was illegal when the president ordered the government to spy on Americans six years ago will be illegal in the future. The problem wasn't a vague law—it was an overreaching Executive.

There is a reason the Framers were so worried about granting the president the power to initiate wars—even teensy little unanticipated emergency wars—and granted that power to the people who would fight them instead. Abraham Lincoln put it this way: "Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This, our Convention understood to be the most oppressive of all Kingly oppressions." The Constitution assumed a congressional branch capable of pushing back against a king. The War Powers Commission has downgraded that to a congressional branch able to "consult meaningfully" with a king. The Framers would say that's a step in the wrong direction.