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♪ ♪ KATKO: Welcome America to "Balancing Act," the show that aims to tame the political circus of two-party politics.

I'm John Katko.

This week, the War Powers Resolution: What is its original purpose, and who actually holds the power?

In the Center Ring, we'll ask RIT Professor Sarah Burns, who authored a book on the subject.

On the Trapeze is Roger Zakheim, director of the Ronald Reagan Institute, and Scott Anderson, a fellow at the Brookings Institution will take swings at the issue.

Finally, I'll give you my take.

But first, let's walk the tightrope.

♪ Following the United States' recent actions related to Venezuela, the War Powers Resolution made its way back into the national spotlight.

When Americans hear the phrase "war powers," we often picture one person, the president, the commander in chief, able to act fast.

Based on its history, it appears most presidents would likely agree with that image.

In fact, according to a 2016 Annenberg Civics Survey, 39% of Americans mistakenly believe that the president has the power to declare war, but the Constitution actually splits war powers.

Only Congress can declare war.

It also funds a military and sets the rules.

The president, on the other hand, commands forces once they're in the field.

But here's a powerful fact.

The last time Congress issued formal declarations of war was during World War II.

First in December 1941 against Japan after the attack on Pearl Harbor, and then against Germany and Italy, and most recently against Hungary, Romania, and Bulgaria in 1942.

Since then, America has fought major conflicts without ever declaring war.

In Korea, for example, President Harry Truman never asked for a declaration of war.

Instead, he sent troops and called it a police action.

In Vietnam, military troops were already there when Congress approved the Gulf of Tonkin Resolution, a broad authorization that allowed President Lyndon Johnson to use force in Southeast Asia without a formal declaration of war.

Even the 1991 Gulf War, under President George H.W.

Bush, and the Iraq War that followed in the 2000s, under President George W. Bush, were waged on the congressional authorizations to use force.

They were wars in every real sense, but not under the formal constitutional model most of us learned in school.

After Vietnam, Congress tried to rebalance the scales and bring Congress back into the decision of when and whether the country should go to war.

In 1973, Congress passed the War Powers Resolution, often referred to as the War Powers Act, to ensure, in its words, that the collective judgment of Congress and the President would apply before U.S.

forces enter hostilities.

The idea was simple: first, consult.

The president is supposed to talk to Congress before using force.

Second, report.

If troops are deployed, the president must inform Congress within 48 hours and explain the legal basis.

Third, the clock.

If Congress doesn't approve, the law says a combat operation should end after 60 days with a short window for withdrawal.

But here's a catch.

The law never defines the word "hostilities."

That omission has allowed presidents, for the most part, to act as they like in their roles as commander in chief.

So, more than 50 years after it was passed, does the War Powers Resolution have teeth, or have we drifted into a new normal where presidents act first and Congress debates later?

Let's ask our expert in the Center Ring.

♪ ♪ Joining me now is Sarah Burns, Professor of Political Science at Rochester Institute of Technology, and the author of The Politics of War Powers.

Welcome, Sarah, and let's get back to it.

The War Powers Resolution was meant to fix presidential power.

Why hasn't it worked as intended?

BURNS: It's a very good question, and thank you for having me.

I think one of the difficulties that Congress had after they passed it is that they had basically three tiers.

So the first tier is, you know, the president should come to Congress and say, we need you to pass a declaration of war or the other tier is an authorization for the use of military force.

That sounds less serious than a declaration of war, but the idea is that this is an authorization from Congress saying, Mr.

President or Ms.

President, you are allowed to do the following things in the following countries, the following areas of the world.

Finally, they said they would allow presidents to have 60 to 90 days to unilaterally engage in some sort of military operation.

The idea here was that this was to ensure that the president was able to do something very quickly and with nimbleness.

Unfortunately, what this has meant is that presidents felt as if they had the authorization to engage in short-term military operations without actually getting the consent of Congress.

And the only thing they're required to do in this third tier is to tell Congress within 48 hours what they have done.

KATKO: So the word "hostilities" is in the law.

What counts as hostilities under the law, and how has that ambiguity been used or misused?

BURNS: Again, a very good question.

It's really problematic because the definition of hostilities has been warped by different administrations.

So very famously, in my line of work, a lawyer from the Obama administration, Harold Koh, said that the operation in Libya in 2011 didn't actually count, as he put it, in terms of hostilities, because it wasn't what the Congress intended when they passed the law in 1973.

So members of the executive branch have been able to change this definition in an effort to decide when and where they want to use hostilities and how they want to use it.

Members of Congress have had a lot of difficulty overcoming the complications of deliberation in order to really clearly define what hostilities mean.

KATKO: So have we shifted from the narrative of "Should we use force" to the narrative of "Can the President do it?""

Why does that subtlety matter?

BURNS: The subtlety matters because what we need is what Edward Corwin called an "invitation to struggle."

What you really want from members of Congress and the executive branch is to battle against each other in a fairly friendly way to say, who gets to decide what we're doing in foreign policy.

Unfortunately, what we have now is members of the executive branch just saying, we're going to decide how we want to use force and when we want to use force.

And members of Congress have done a very poor job battling against that and trying to stand up to the president.

KATKO: Has it always been that way since this law was, enacted the president's basically ignoring Congress, or is this more of a recent development over the last few years?

BURNS: It's certainly true that the reason why they passed the War Powers Act or War Powers Resolution-they're called the same, it's the same thing, it's just called different things depending on who you are.

So when they passed it in 1973, they did so over the veto of President Nixon at the time.

And this was the last time we really see Congress assertively standing up to a president.

But as I mentioned, there's a flaw, a major flaw in the resolution that makes it so presidents are able to kind of work around Congress.

I wouldn't say that we have never seen Congress standing up to the presidents, but I would say that basically since the attack on Pearl Harbor, we have not seen members of Congress really aggressively and assertively and effectively standing up to presidential unilateralism, making it really easy for presidents to try to get away with things.

What we've seen over time is essentially Congress seeing that it doesn't have the ability to stop presidents from doing what they want to do, so they don't assert themselves very aggressively or effectively.

KATKO: So why wasn't Congress more clear when they initially passed the War Powers Act?

Why didn't they just have more specifics in there?

BURNS: The difficulty of passing laws, right?

As we know, one of the things you don't want to see is how laws are passed, but the other thing you don't want to see is how sausages are made.

And so what happened when they were passing the War Powers Resolution is they were trying to get bipartisan support at a very tense moment in American history, right during the end days of the Vietnam War.

And this was the best they could do.

I think they did try their best to do a good job and to find ways to restrain the president.

But unfortunately, presidents are very good at finding ways around legislative constraints.

KATKO: Have there been any fixes attempted since that time to fix some of these ambiguities and gaps in the law?

BURNS: A little bit.

I want to, you know, like lie on a couch and be like, listen, I've studied this for a long time, so, yes, they have been ineffectively.

The most recent effort, just recently when Donald Trump went into Venezuela and extracted - extracted is the term we typically use - President Maduro and brought him to the United States.

After that, you have an effort by a variety of people in the Democratic Party, as well as five defectors from the Republican Party, to attempt to find restraints for presidential action in Venezuela specifically.

You also have some conversation about restraints on presidential action in Greenland, in Iran, and in Cuba.

Those are ongoing discussions.

We will see whether or not they come to anything.

The other main thing I would reference is in 2021, there were three senators.

So it was Chris Murphy, Bernie Sanders, and Mike Lee, who are from very different parts of the ideological spectrum.

All of them came together to try and create a new national security strategy that would better restrain presidential powers and force the president's hand to come to Congress and to interact with Congress.

That, unfortunately, did not pass, and it didn't come very close to passing, but I think it was the best effort I have seen in the last 20-some-odd years in an attempt by members of Congress to constrain presidential unilateralism.

KATKO: So you've got about 45 seconds.

Could you tell me briefly, how would you amend the law to make it work better in your mind?

BURNS: I think if you had a way that it was necessary for the president to go to Congress unless there was an attack - so something like 9/11 - you'd say obviously the president should have a free hand.

But other than that, it should be that you have presidents dutifully going to Congress and saying, what would you like me to do?

And explaining to them what presidents want to do.

And I think that would be very valuable for the health of the constitutional system.

KATKO: Sarah Burns at Rochester Institute of Technology.

Thank you so much for your great input on this.

For more on the War Powers Resolution and its impact, let's take to the trapeze.

Joining me now is Roger Zakheim, Director of the Ronald Reagan Institute, and Scott Anderson, a fellow at the Brookings Institution.

Welcome, gentlemen, and Scott, start it up with you.

Is the resolution of the War Powers a necessary check on presidential power, or is it an outdated constraint?

ANDERSON: Yeah, the 1973 War Powers Resolution serves a valuable function.

It sets outer limits on the action the president can take without seeking authorization from Congress - or I should say perhaps it reinforces those limitations.

The posture we've seen federal courts take towards war powers questions over the last half-century and arguably a bit longer has been that they look for signs of congressional opposition before they're willing to weigh in and say, does the president have the legal authority to take a step or not?

And the War Powers Resolution is really the only major legislation we have where Congress has set outer parameters of that.

In this case, it's a 60 to 90-day time limit, being the main restriction.

It's not a super detailed restriction, but it's an important barrier against major military undertakings the president could pursue on his own authority, saying, you need Congress to come to Congress first before he can undertake those.

And I think that's up to Congress's judgment to say, we're going to impose that limitation.

It doesn't facially strike me as an unreasonable one.

KATKO: Roger, what's your take?

ZAKHEIM: Well, listen, I think following Vietnam, which is when the War Powers Resolution was adopted, where you had an extended armed conflict without real congressional authorization, there's rationale and reason behind it.

The Congress has used this resolution since then in order to assert its authority to demand notification, to ensure that you don't have an extended conflict without Congress really leveraging and engaging in its own constitutional authority.

But the reality is, as related to Venezuela, which I'm sure we'll get into, this is sort of beyond the realm of where the War Powers really needs to operate.

Certainly, if you have, as President Trump has done, provide notification to Congress and it's not extending beyond 60 days, let alone six days or even six hours as Senator Mitch McConnell emphasized.

So Congress sure has the prerogative to go ahead and assert its authority, the constitutionality of the War Powers Resolution has always been in question.

And I think Congress ought to really select its spots in terms of where it seeks to press its authority around war powers.

KATKO: Scott, it seems to me that it's gotten to the point now that the War Powers Resolution is where you act first and seek permission later.

It's like better to seek forgiveness than ask permission.

Is that where we're at with it?

ANDERSON: In a lot of ways, and to some extent, that's a product of the structure that the War Powers Resolution sets in place.

In effect, the main limitation it sets is, after 60 to 90 days - 60 days can be extended 30 days in certain circumstances -the president has to either have congressional authorization or terminate a military operation.

That outer boundary is one the executive branch actually really hasn't pushed against since the War Powers Resolution was enacted in 1973.

There have been a few borderline cases, but for the most part, the executive branch has either limited its military operations, sought congressional authorization, or framed its military operations in a way that they said wasn't the sort of major undertaking the War Powers Resolution was concerned with.

You can debate whether those are right interpretations of the law, but it's not an outright repudiation of that restriction.

And it's not an unreasonable restriction in my mind.

In this case, in the Venezuela case, it may not come up at all in regards to the Maduro operation, which may be a good or a bad thing from your perspective, but certainly significant when you start hearing President Trump talk about a second wave involving ground troops, something that to be effective would clearly involve U.S.

troops in Venezuela for longer than 60 to 90 days.

That is a major undertaking, and that's one, the sort of thing that I think we may want Congress to have a voice in.

KATKO: Scott, do you agree that they're generally following -- Roger, do you generally agree that they're following, if not the letter, but the spirit of the War Powers Resolution in practice?

ZAKHEIM: Well, certainly, I think President Trump and his administration are doing what Republican and Democratic presidents before have done, which is to comply with the notification while at the same time not in any way confirming the constitutionality of the law.

So if you look at the War Powers notifications that come from Republican and Democratic presidents, they'll say, here, such and such has happened.

We're doing this to comply, but we in no way agree that the president, under his Article II authority, is bound by the War Powers Resolution.

And certainly as it relates to Venezuela, they've complied.

In the event there is additional military action in Venezuela or elsewhere, it triggers a new view from Congress.

War Powers notification.

But for now, absolutely in compliance, regardless of the rhetoric you hear from some corners in Washington or in the Congress.

KATKO: Yeah, if it's a Democratic president making an action, then, of course, you hear from Republicans and vice versa.

But let me ask you this, Roger.

Just stick with you for a moment here.

Should the resolution be amended in any way to reflect how it works in practice today, or do you think it's working okay?

ZAKHEIM: I don't think amending it will improve the situation at all.

I mean, the reality is, Congress has all the levers it needs to go ahead and assert its Article I authority, the power to declare war.

Those are best expressed by a declaration of war or an authorization to use military force.

If Congress really did not want the president of the United States with the executive branch to carry out military action, it can go ahead and not fund that military action.

There were times during the Iraq War and Afghanistan War where Congress was contemplating hemming in the president's ability to carry out that conflict either by saying that the president should not continue the war or limit the nature of the military operations, and they expressed that in votes in Congress either to not fund the war or to limit the nature of the war, saying that U.S.

military forces, for example, couldn't carry out combat operations.

They'd be limited to training and support activities.

That's all within the realm of what Congress needs.

Frankly, you do not need a War Powers Resolution to go ahead and do that.

KATKO: Scott, your take?

ANDERSON: Yeah, I think it's correct that Congress has other tools available to it, but that doesn't mean that it shouldn't be free to erect additional tools, just as it does in other areas subject to its regulatory authority.

Here, the simple truth is that Congress, in the end, has the authority to declare war under the Constitution, not the president.

The president asserts a lot of inherent Article II authority to use military force, but even the executive branch, under the last several presidents, has acknowledged there's some outer limit on that.

And here, Congress is simply stepping in saying, we're going to establish some outer boundaries, some guardrails about how far the president can go before he really needs to come to us and talk to us.

Congress, in my view, it's really a judgment primarily for Congress to be debated by the most democratic branch to say, well, do we need to make those guardrails tighter or looser?

And that depends, varies depending on circumstance, the president, the policy situation you're facing.

It's part of the broader political debate.

But simply saying, no, Congress can -the only tool it has available to it is to limit appropriations, I think, is cutting short what is the actual authority it has under the Constitution, including the express authority to declare war that the Constitution gives to Congress, and it really ties its hands.

Appropriations happen on an annual cycle.

Military operations often happen on a much quicker pace.

And obviously, there are real attendant costs of cutting off appropriations, not least because it can be framed as actually presenting real threats to troops that Congress cares about, even if they want to constrain what those troops are doing.

So in that environment, where the executive branch can and has deployed all sorts of legal arguments that interpret and minimize the limitations Congress might want to impose, I'm hesitant to say Congress should tie its own hands and say, oh, we're only going to use appropriations riders and restrictions as opposed to other legislative tools available to it, like the War Powers Resolution.

KATKO: So, just briefly, would you amend it at all, or do you think it's good as it is?

ANDERSON: There are absolutely ways you can amend the War Powers Resolution to improve it.

We have seen lots of vagaries and uncertainties in the original legislative text be capitalized on by the executive branch, at different points under Democratic and Republican administrations, to interpret it in ways that allow for military operations that otherwise may be constrained.

There are questions about how the expedited procedures work.

There's questions about how a variety of other aspects of the resolution work that have come up over the last 50 years that could certainly use refinement.

And I think it's really Congress's prerogative to say, okay, we need to improve upon this and make it more effective.

I don't think that means necessarily Congress has to second guess every military action a president wants to undertake.

But it's up to Congress to draw the line saying, here's what we can trust the president to do and here's what we think he needs to come to Congress for.

And I think it's a perfectly reasonable tool to do that with, and it could be done better through a variety of technical amendments.

KATKO: So, Roger, let's take Venezuela as a case study.

This is not your traditional military action, where you went and attacked a terrorist site.

You stopped somebody from doing something bad in our country, technically.

You went in and took out another leader and brought him back.

And whether you're for it or against it, I just want to know how you think if that is still within the limits of the War Powers Resolution, or is that going a little bit farther than it might require a little more tweaking and pruning a law to set some guardrails?

ZAKHEIM: I think it's actually well within the reach of the Commander in Chief authority under Article II, as well as precedent as it took a matter of hours, not days.

There was a criminal indictment attached to Maduro.

The president made a clear finding that he and the regime were a threat to U.S.

national security, and there was precedent based on what President George H.W.

Bush did in Panama with Noriega.

So you have examples, both precedent and in terms of inherent legal arguments, to justify that what took place in Venezuela was within the You know, I had an opportunity to work in Congress as General Counsel for the Armed Services Committee.

The oversight mechanisms are pretty strong there.

You will get briefings to the congressional defense committees and the foreign relations committees on these operations.

So there is quite substantial interaction between the political branches-that is, the executive and legislative branch.

And I think it played out pretty much, I think, like our founders would have wanted it to, which is this robust engagement back and forth between the branches, briefings, notifications, and it certainly wasn't extended in a fashion where it was contemplated by the War Powers Act.

KATKO: So, Scott, I want to hear your take, but I want to just ask you this question.

First of all, did you think that was okay to do?

Was that within the parameters of the War Powers Resolution, going to Venezuela?

But secondly, what if President Trump left troops on the ground there?

Would that muddy the waters in your mind?

ANDERSON: Yeah, I mean, look, the military operation in Venezuela that happened was constrained enough that I think it falls under the threshold of what prior presidents have done under the War Powers Resolution.

That doesn't mean it wouldn't be unreasonable for Congress to change that.

Changing a head of state, engaging in regime change, is a really, really troubling action with huge ramifications that we see in the consequences of that in Iraq and other places.

I think it'd be very reasonable for Congress to say, hey, we're going to amend the War Powers Resolution to set limits on this.

Yes, there are precedents from Panama and other cases.

KATKO: I'm sorry, go ahead.

ANDERSON: That's right.

So I was going to say, maybe Congress does and should want to do something about that.

KATKO: Okay, Roger Zakheim, Director with the Ronald Reagan Institute, and Scott Anderson, a fellow with the Brookings Institution, thanks so much for a great discussion.

Now it's time for my take.

The United States Constitution is one of the greatest charters ever created.

Time and again, we marvel at our founding fathers' insight as they drafted it with a keen eye toward balance of power.

Their approach to the use of the military is a perfect example.

They designated the president as Commander in Chief but reserved for Congress the power to declare war.

Balance indeed.

Thinking through the hard part, likely by design, the founders let history and experience decide how to interpret and implement the use of the military, and modern presidents have done just that, responding to circumstances as they arise.

Congress may be able to help by setting clearer guardrails around that authority, but any reforms must also recognize a basic reality.

We cannot handcuff a president's ability to act quickly and decisively with our military when circumstances dictate.

Perhaps the best course of action is the most difficult: breaking through the petty partisanship that pervades Washington.

Presidents should be encouraged to build trust and consult with congressional leaders before taking action.

Now, that would require real power, and that's my take.

That's all for this week, folks.

To send in your comments for the show or to see Balancing Act extras and exclusives, follow us on social media or go to BalancingActWithJohnKatko.com.

Thank you for joining us.

Remember, in the circus that is politics, there's always a balancing act.

I'm John Katko.

We'll see you next week, America.

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