Replacing the War Powers Act

Hayes Brown reports on a bill proposed by Senators John McCain and Tim Kaine to replace the War Powers Act with a stronger restriction on the executive use of force:

That provision would exclude humanitarian missions and covert operations, and the initial consultation could be deferred in time of emergency, but must take place within three days after. The legislation would also raise a new joint committee composed of the heads of the Armed Services, Foreign Relations, Intelligence, and Appropriations in both Houses of Congress “to ensure there is a timely exchange of views between the legislative and executive branches, not just notification by the executive.”

Finally, the law, if passed and signed, would require a vote in Congress in support of or against any military operation within 30 days. “Under the Act, all Members of Congress would eventually be asked to vote on decisions of war in order to ensure a deliberate public discussion in the full view of the American public, increasing the knowledge of the population and the accountability of our elected officials,” a press release announcing the legislation reads.

I’m in general agreement with the sentiment of this bill. As Hayes notes, Congress has never successfully marshaled the War Powers Act to prevent an executive use of force. That said, I wonder how much difference the proposed replacement will make.

First, there’s the possibility for abuse of the emergency deferral provision. This provision is a necessary hedge in a world of nuclear intercontinental ballistic missiles with 30-minute flight times. But how many presidents can we expect to promote their use of force as something other than an emergency?

In the event of good-faith implementation, the bill’s initial requirement for an executive “consultation” with a joint congressional committee may not deter the executive if the committee lacks the authority to deny a use of force.

If the president goes ahead with a use of force against the wishes of the committee, the subsequent Congressional vote will be fraught with political peril. As we saw with the Iraq War, it’s easy to drum up public support for the initiation of force through fearmongering, jingoism, and other forms of manipulation. Congressmembers may often find themselves with no political choice but to vote for, and thus to legitimize, continued military action once nay votes can be painted as complicity in abandoning the troops.

On the other hand, it’s possible that the committee could get out ahead of the president and use his defiance as a political bludgeon to swing the floor vote against him. If this happened even occasionally, the bill’s track record would be better than that of the War Powers Act. But I would expect presidentially-evoked “rally round the flag” effect to drown out the committee’s protestations in times of fear, when barriers against war are most necessary.

The bill would be a valuable step in the direction of democratic barriers to the use of force. But in the absence of cultural deglamorization of war and constant political vigilance, it may not prevent that many wars.

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