War Powers

Rick Pildes on WPR

By Jack Goldsmith
Friday, June 17, 2011, 12:26 PM

Rick Pildes has a very thoughtful post at Balkinization on the constitutional politics of the War Powers Resolution, the difficulties Congress faces in responsibly controlling executive discretion to make war, how Chadha enhances these difficulties, and what to do about it all.  A flavor:

Other legal structures for allocating legislative and executive responsibility over uses of military force, which would not make congressional inaction decisive, are possible, at least in principle. Traditionally, one concern about requiring Congress to act to terminate Presidential uses of military force is that if Congress must act by legislating, that legislation would have to be able to surmount the inevitable presidential veto. Thus, Congress could not, in fact, terminate presidential action unless it had 2/3 support in both the House and Senate, which would never happen except for the most dramatically unpopular uses of military force. But there are several alternative structures to envision. First, perhaps the Supreme Court was wrong in the Chada case to hold the “legislative veto” unconstitutional, at least as applied to warmaking measures; perhaps the Court should have recognized that Congress ought to be able to delegate certain military powers to the President, but be able to veto the exercise of those powers through a joint resolution of both chambers that does not require presidential approval. Second, assume that getting the Court to revisit Chada for the context of uses of military force is not an option, it is still true that a joint resolution of Congress declaring that certain military operations should be terminated would likely have a significant effect on a President’s actions; even if that joint resolution has no formal legal effect (because it is not actual legislation), there is a good deal of evidence that congressional resistance to presidential military actions, short of actual legislation, nonetheless have significant effect in influencing presidential actions. See Douglas Kriner’s book, After the Rubicon: Congress, Presidents, and the Politics of Waging War, which documents these effects. Finally, and most dramatically, a President could announce in advance that if Congress adopts a joint resolution urging the termination of military force, he will abide by that resolution, even if he is not legally obligated to do so. In doing so, the President would signal his willingness to be bound by law in the use of military force, but through a structure of decisionmaking that would require that Congress actually affirmatively act, even through the form of a joint resolution.

Worth a read.