Glennon: The War Powers Resolution, Once Again

Michael J. Glennon (Tufts Univ. - The Fletcher School) has posted The War Powers Resolution, Once Again (American Journal of International Law, forthcoming). Here's the abstract:

On July 8, 2008, the "National War Powers Commission" issued a report recommending repeal of the 1973 War Powers Resolution and enactment of a new law. The new law would put in place a consultation requirement applicable to significant armed conflicts, set up a new joint congressional committee for the President to consult, and establish a procedure aimed at requiring congressional approval or disapproval of such conflicts. The members of the Miller Center panel are owed a debt of gratitude for helping to focus public attention on these problems and adding to the impetus for reform. The panel's proposals, however, present an illusory solution to a non-problem. The problem is not, as its report suggests, that Congress sometimes is silent in the wake of significant but unauthorized use of force by the President. The problem, rather, is that force sometimes is used by the President without congressional or constitutional authority. The solution to this problem is not, as its proposal recommends, to try to force Congress to approve or disapprove that use of force after the fact, or to force the President merely to consult with a few members of Congress beforehand. Congress has no obligation to say anything when faced with a presidential fait accompli that violates the Constitution; it often would be good if it did, but that is, at least partially, the job of the courts. Seeking a few congressional opinions does not fulfill the constitutional requirement of prior legislative authorization. The report is correct that Congress needs to address the Resolution's flaws. The real question is whether Congress truly wants to force its inclusion in the decision to go to war. If it does, the constitutional means are available to do that.