In wartime, Congress must step up to check president

By Lee Hamilton
Mar 9 2009

 After more than two centuries, debates over the war-making powers of the president and the Congress are unresolved, and there is no resolution in sight. The president and the Congress simply disagree, and the Supreme Court has not intervened.

 

Partisans on both sides point to various constitutional provisions to make their case. Advocates for presidential supremacy cite the Constitution's executive and commander-in-chief clauses. The advocates of congressional authority point to Congress' constitutional power "to declare war."

My view is that the president can go to war — if he wants to — and Congress cannot stop him — even if it wanted to, which rarely, if ever, has been the case. The key question thus becomes: How can we assure that the president gets the best advice possible before embarking on such a fateful enterprise, not just from his inner circle but also the diverse body of opinion represented in the Congress? The decision to go to war, the most serious decision a government makes, should be a shared decision between the president and the Congress.

To check the executive branch, Congress needs a seat at the table. But Congress' responsibilities do not end when conflict commences. Throughout the course of a war, Congress must perform strict and comprehensive oversight of the executive branch. Also, Congress can end — and shape — war through exercising its power of the purse. The creative tension between co-equal branches of government ultimately produces better policy.

In 2008, I served on the bipartisan National War Powers Commission chaired by James Baker and Warren Christopher. We recommended the creation of a legal mechanism requiring the president to consult Congress on decisions to go to war. The president would be bound by law to consult a newly established Joint Congressional Consultation Committee, consisting of a bipartisan group of congressional leaders on national security issues, with its own permanent bipartisan staff.

Consultation has to be sincere, a true effort to consult and work with the other branch in the decision-making process.

(Lee Hamilton is Director of the Center on Congress at Indiana University and Director of the Woodrow Wilson International Center for Scholars in Washington, D.C. He was a member of the U.S. House of Representatives for 34 years.)