MARGARET WARNER: It was the costly and bloody Vietnam War that touched off the modern-day struggle between the White House and Congress over the power to go to war, but the conflict is as old as the Constitution itself.
Article 1, Section 8 of the Constitution gives Congress the power to declare war. But Article 2, Section 2 of the Constitution makes the president commander-in-chief of the Armed Forces.
HARRY TRUMAN, former president of the United States: The president has the power to meet an emergency when it comes up. And he should take the bull by the horns and meet it when it’s necessary.
MARGARET WARNER: Presidents since Truman have used that power to order American forces into combat with and without congressional approval.
As the Vietnam War, which cost 58,000 American lives and hundreds of billions of dollars, wound down, Congress sought to reign in President Nixon and future presidents with the 1973 War Powers Resolution.
Under the resolution, which remains in force today, a president’s commander-in-chief powers may only be used after a declaration of war, other congressional authorization, or an attack on the United States.
The president must consult Congress before introducing U.S. forces into hostilities or situations where combat is imminent.
The president must report to Congress regularly after sending troops to war and must withdraw forces within 60 days if Congress doesn’t authorize them to stay.
President Nixon vetoed the resolution, but Congress overrode the veto.
GEORGE H.W. BUSH, former President of the United States: America and the world must defend common vital interests, and we will.
MARGARET WARNER: Nixon and his successors have all maintained that the War Powers Act is unconstitutional. That issue has never been resolved by the Supreme Court.
Yet modern commanders-in-chief have gone to Congress for authorization to use force. Most recently, President Bush in 2002 asked for, and received, congressional approval before going into Iraq.
Today, two former secretaries of state, heads of a bipartisan private commission, proposed replacing the War Powers Act with a new law. Their proposal would require the president to consult specific congressional leaders before launching hostilities expected to last more than a week.
Congress, in turn, would be required to vote within 30 days on whether to approve the military action. Commission member Slade Gorton is a former Republican senator from Washington state.
SLADE GORTON, National War Powers Commission: We’ve attempted to create a balance that should meet favor both in the Congress and in the executive branch, and as has been the case on this commission, a balance with appeal to both Republicans and to Democrats.
We think that we are doing what the members of Congress 35 years ago might well have done themselves had they anticipated the problems with the bill that they actually passed.
MARGARET WARNER: The commission called on the next president and next Congress to enact the new law within the first 100 days.
A more effective war power
MARGARET WARNER: And joining me now are the co-chairs of the commission. James Baker served as secretary of state during the presidency of George H.W. Bush. And Warren Christopher held the same post during the first Clinton term.
Their commission was created by the Miller Center at the University of Virginia.
And welcome, Misters Secretary. It's nice to have you.
JAMES BAKER, former secretary of state: Thank you, Margaret.
WARREN CHRISTOPHER, former secretary of state: Thank you, Margaret.
MARGARET WARNER: Secretary Baker, as you said today, most modern presidents have, in fact, sought congressional authorization to go to war. Why do you think there's any urgent need to revise this process?
JAMES BAKER: Because the War Powers Resolution of '73 that you mentioned in your set-up piece that was passed over President Nixon's veto is ineffective. It doesn't work. It's more often ignored than really fully complied with.
No president, since it was passed, has acknowledged its constitutionality. It requires presidents to flood the Congress with meaningless paper and reports that don't amount to anything.
It's a bad law, and it needs to be replaced by a good law, and a law that does not in any way diminish, or restrict, or impair the ability of either branch to make its constitutional war powers arguments.
MARGARET WARNER: And, Secretary Christopher, why would future presidents regard this as any more constitutional than they have the War Powers Act, which they've seen as an infringement on their prerogatives as commander-in-chief?
WARREN CHRISTOPHER: Margaret, not to get too legalistic about it, but about 10 years after the War Powers Resolution of 1973 was passed, the Supreme Court came down with a decision called the Chadha decision.
And I think most commentators since then have recognized that the mechanism of the War Powers Resolution of 1973 simply cannot survive that constitutional test set up 10 years after the act was passed in 1973.
So almost without question, important parts of the statute are unconstitutional. And that has given presidents and the Congress a reason not to comply with it.
What this does for the presidents in the future is gives them an indication as to who they should consult with. It gives Congress a mechanism that provides a staff for them. And for the president, it requires the Congress to act up or down within 30 days after the conflict begins.
So I think for the president, it does away with the statute that's been a real nuisance over the years. And also it gives him authority, a certainty that the Congress will act up or down within 30 days.
Too soft or too hard on Congress?
MARGARET WARNER: But, Secretary Baker, another outside group, a bipartisan group, criticized your recommendations today, saying essentially it was relegating Congress to the role of a consultant to the president.
Are there any teeth in this at all to require the president after this consultation to accede to the wishes of Congress?
JAMES BAKER: Well, no, this does not pretend to require the president to obtain the consent of Congress. All it does is require that the president consult with the Congress in good faith, which is something that all of the polls have shown for a long period of years that the American people want to see.
And we hear a lot of talk about bipartisanship out there on the campaign trail. And here we are about to begin a period with a brand-new Congress and a brand-new president.
It's an important time and opportunity for the new government, both the Congress and the president, to show that they can proceed in a bipartisan way, in a way that the people want them to proceed, on one of the most important issues the country ever faces, the issue of going to war.
We've constructed here what we think is a practical solution to a debate that has raged for over 200 years to a theoretical debate. We have a practical solution that we don't think disadvantages either the executive branch or the Congress and that we think is good for both and good for the American people.
WARREN CHRISTOPHER: Margaret...
MARGARET WARNER: Yes, Secretary Christopher, let me just ask you about the provision that really puts Congress's feet to the fire, which requires Congress to vote within the first 30 days of a conflict, if they haven't already voted.
Given the atmosphere that always seems to prevail in the first months of a conflict, is it realistic to think that -- the public atmosphere -- to expect any Congress, even if it has misgivings, to vote against essentially a new war?
WARREN CHRISTOPHER: Well, this is an ongoing consultation, Margaret. Under the statute, the president is required to consult with the Congress every two months thereafter, and Congress can subsequently take some action.
I wanted to go back to the question you asked Secretary Baker. You're going to hear -- or we're going to hear criticism from both the extremes. The congressionalists are going to say this takes power away from Congress. The people sometimes who support the president and thinks he has absolute authority will say this somehow infringes on the president's authority.
But we think it does neither. It really moves down the middle and does provide us assurance that the president will have to go to Congress and consult with the Congress before taking this fateful step of going to war.
JAMES BAKER: And, Margaret, let me add to that, that through the years there have been many efforts to amend or repeal the War Powers Resolution because everyone acknowledges that it doesn't work.
These efforts have failed because, for the most part, they've all leaned either too far toward the Congress or either too far toward the executive branch.
And these absolutist positions, such as the one that you mentioned that has criticized our proposal, are the reason that we're still stuck with a statute that doesn't work and that really eviscerates -- maybe not eviscerates, but diminishes the importance of the rule of law, which is, of course, the foundation of our democracy.
Going to war if the law passes
MARGARET WARNER: Secretary Christopher, let me go to the here and now. I mean, the United States is embroiled in two conflicts in Iraq and Afghanistan. A lot of the public is certainly unhappy about the Iraq conflict. Yet both got -- in both cases, the president got a congressional authorization. If your proposal had been law, what would be different now?
WARREN CHRISTOPHER: Well, Margaret, we looked to the future in this situation. In any future conflict that the president was about to wage, he would have to go to the Congress for consultation and Congress would have to act in the way the statute provides.
I really didn't want to talk about -- we didn't want to call balls and strikes on the past. I think we're looking to the future with these new kinds of warfare that we're facing from non-state actors, and it requires that there be a mechanism where the president knows who to consult and can consult and get a rather rapid response.
MARGARET WARNER: But it would depend, would it not, Secretary Baker, on the political will of the president to actively seek consultation? I mean, there's nothing here to force it.
JAMES BAKER: Well, no. You could not force it. We make the point in our statute that both the Congress and the president retain all of their constitutional war powers. They retain the right to assert those against the other branch.
And even if the statute were to pass, I suppose a president or a Congress could refuse to comply with it on the grounds that they have powers under the Constitution that supersede the statute.
MARGARET WARNER: And, Secretary Christopher, I know you talked to both the Obama and McCain campaigns, but have you received any assurance from either campaign or the current congressional leadership, anyway, that they would make this a priority in the first 100 days?
WARREN CHRISTOPHER: Well, these are early days. We have talked to the staffs of both of the candidates. And we've been meeting with people on Capitol Hill.
We think this is urgent enough so that it ought to be done in the first 100 days. Of course, Congress will work its own calendar will.
But we use that term of 100 days to stress what we think is the urgency of this, because the next time this kind of a conflict comes along, we don't want to be stuck with this ineffective, outmoded, almost certainly unconstitutional statute.
MARGARET WARNER: And, Secretary Baker, are you all committed to push for this actively, the way the members of the 9/11 Commission did?
JAMES BAKER: Well, I think we would like to see it enacted or we wouldn't have recommended it. We said today that we would -- members of the commission will be available -- I can't say they all will -- but a number of them would be available to testify from time to time.
We will certainly be supportive of it. We wouldn't be here talking to you this afternoon if we weren't.
MARGARET WARNER: All right, Secretary Baker and Secretary Christopher, thank you both.
WARREN CHRISTOPHER: Thank you very much, Margaret.
JAMES BAKER: Thank you, Margaret.