Just shy of eight years after they squared off in the Florida recount battle, James A. Baker III and Warren Christopher have joined forces to clean up one of the ugly legacies of Vietnam — the misguided piece of legislation called the War Powers Act.
Passed in 1973 when Congress was frustrated with the undeclared war in Southeast Asia, that statute is proof of the adage that hard cases make bad law. Cases don't come any harder than Vietnam, and the War Powers Act has turned out to be one of the worst bills ever to be signed into law.
Its constitutionality is suspect, but no one has ever found a way to test it in court. Now Baker and Christopher, both former secretaries of state before they became lawyers for George W. Bush and Al Gore, respectively, in the 2000 struggle over Florida's decisive electoral votes, have found common cause as co-chairs of a National War Powers Commission created by the Miller Center of Public Affairs at the University of Virginia.
When I saw the two men last week, I found no lingering sense of the partisan animosities that marked their Florida encounter. Instead, they communicated a shared passion to help the next president and Congress find a way to solve a problem that has vexed the capital since its early days.
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The Founders left a ton of confusion about an important question: Who has the authority to make war? Article I of the Constitution gives Congress the exclusive right to declare war but Article II makes the president commander in chief. Nowhere does it say where the authority of one stops and the other begins.
The War Powers Act tried to resolve the question by putting a time limit on the president's ability to deploy troops into a combat zone, but no president has accepted as legitimate that limitation on his authority, and Congress has never tried to enforce it.
Baker and Christopher told me that as they dug into the issue, they and their fellow commission members quickly concluded there was no way to nudge the Supreme Court into settling the issue. The court has an aversion to arbitrating conflict between the elected branches.
Law not taken seriously
But Baker and Christopher were reluctant to accept the status quo, in part because, as lawyers, it offends them to have a law governing a vital area of public policy that no one takes seriously.
Instead, they focused on the question of how to encourage substantive discussions between the branches before the weighty decision is made to put troops into combat. Their proposed substitute is called “The War Powers Consultation Act.”
It calls on the president to consult with key legislators before sending troops into “significant armed conflict,” defined as a situation where fighting may last more than a week. It creates a Joint Congressional Consultation Committee, composed of leaders of both parties and senior members of six key committees, and it guarantees that the committee and its staff have access to all the relevant intelligence the president sees.
It requires Congress to vote up or down on a deployment within 30 days, and it permits a cutoff of funds for deployments disapproved by two-thirds of the House and Senate.
‘You can't legislate trust'
That complex procedure, Baker said, is designed to preserve the constitutional authority of both the president and Congress. It avoids some of the practical and legal infirmities of the current War Powers Act. But as he readily conceded, “You can't legislate trust,” and without trust, no set of procedures can be guaranteed to work.
It could be argued that if there were trust between the leaders of the elected branches – as there was for substantial periods of our history but not in recent years – you would need no statute to replace the War Powers Act.