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The Constitution
Art. I, Sect. 8, Clause 11

“The Congress shall have Power To … Declare War …”

 In 1787, the framers of the Constitution used these words to put the decision to go to war in the legislative branch. They wanted to make it more difficult to get into war – easier to get into peace. The decision to take on a war would be made by a majority of elected representatives from across the country – most likely in a roll-call vote on the record. Each representative would be accountable to the voters.In July, 2008, a private commission headed by James Baker and Warren Christopher, proposed (Cached 090110) the repeal of the War Powers Resolution of 1973, and its replacement with a different relationship between Congress and the President. As explained on their website (Cached 090110), they find some wars insignificant, think “consultation” is sufficient, and want a committee that would disenfranchise most of the people’s elected representatives. In their own words, their proposal would:

• Provide that the president shall consult with Congress before deploying U.S. troops into “significant armed conflict” – i.e., combat operations lasting, or expected to last, more than a week.
• Define the types of hostilities that would or would not be considered “significant armed conflicts.”
• Create a new Joint Congressional Consultation Committee, which includes leaders of both Houses as well as the chair and ranking members of key committees.
• Establish a permanent bipartisan staff with access to the national security and intelligence information necessary to conduct its work.
• Call on Congress, to vote up or down on significant armed conflicts within 30 days (after our young men and women are put in harm’s way and our nation is put at risk by the President).

In December 2008 President Elect Barack Obama was briefed on the contents of the proposal.

The main difficulties with Baker-Christopher are four fold. It:

1. Continues the subordination of Congress to the President concerning taking the nation to war
2. Deprives voters of a Constitutional procedure for holding Representatives accountable
3. Legitimates preventive war
4. Permits endless wars by a president who no longer has the support of the people.

Here is an outline of the problems with the Baker-Christopher approach and how it Violates the Constitutional Requirement that Congress Declare War:

• THE CONSTITUTIONAL REQUIREMENTS ARE CLEAR.
  1. Constitutional principles deny the president the power to take the nation to war. 
  2. Early practice under the Constitution confirmed congressional power to declare and limit war. 
  3. The Constitutional Convention considered this matter June 1 and gave Congress authority over going to war. Cases supporting Executive Authority are wrong. Federal courts have failed to consider the record of June 1 when interpreting the Constitution.

• BAKER-CHRISTOPHER PROPOSAL AND BUSH POLICY VIOLATE THESE CONSTITUTIONAL PRECEPTS. 
  1. Reversing the Constitutional order – raising the decision of one person over the majority of all the nation’s elected representativesWhat is buried in the fine print of the Baker-Christopher legislative proposal is that once Congress starts voting on the President’s war, within 30 days of the commencement of hostilities, if a majority does not vote for the war then the proposed bill is defeated. But, in the Baker-Christopher plan that is not the end of it. Aparently, the Baker-Christopher Commission believes that since the President was allowed to start the war by himself, that is the status-quo. To change the status quo requires a majority of Congress. Congress would have to take a second vote. If the majority vote is for peace, it would likely be vetoed as the President would want to continue the war he had gotten us into. In order to override the veto, the Congress would need a 2/3 vote in each house. One vote less than 2/3 in either the House and Senate would allow the war to continue. Thus, this proposal would make it more difficult to get into peace than war. 
  2. Authorizing preventive war. 
  3. Depriving voters of the right guaranteed by the Constitution to make the determination whether to vote for or against the re-election of sitting members of the House and Senate based on the way their representatives in Congress voted for or against war.

• CONCLUSION

The courts have been asked to resolve these Constitutional issues concerning Presidential powers. See NJ Peace Action, et al, v. Bush.

However, it would be more efficient for the Congress and the President to do the opposite of what Baker-Christopher have recommended- and agree to abide by the Constitution.

The assertion by many presidential administrations that the President has authority independent of Congress to use military force because he has done so in the past is without merit. Nor may Congress and the President jointly approve a reallocation of the powers mandated by the Constitution. The “Authorization for the Use of Military force by the President” that has been argued as equivalent to a declaration of war by Congress is precisely the kind of shift in Constitutional authority that has been condemned by the Supreme Court.

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