War Powers Resolution

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Louis Fisher, “The Baker-Christopher War Powers Commission” (PDF, 82KB), 39 Pres. Stud. Q. 128 (2009). In July 2008, the National War Powers Commission recommended the repeal of the War Powers Resolution and its replacement with the War Powers Consultation Act. Co-chaired by former Secretaries of State James A. Baker III and Warren Christopher, the commission report promised “equal respect” to the legislative and executive branches. In fact, it greatly strengthens the President’s capacity to initiate war and weakens congressional and public control. Instead of addressing the framers’ fear of placing the war power in the hands of a single executive, the report claims that the U.S. Constitution is “ambiguous” about war powers and that federal courts “for the most part” have declined jurisdiction over war powers cases. Both assertions are false.

Louis Fisher, "When the Shooting Starts" (PDF, 117KB), Legal Times, July 28, 2008, p. 44. The Baker-Christopher commission recommends that Congress pass legislation guided by the principles of the rule of law and equal respect for all three branches. The proposed statute would require Congress to vote on a non-binding resolution of approval for any significant use of military force. If that failed, any lawmaker could require Congress to vote on a joint resolution of disapproval, which would be subject to a presidential veto. The article concludes that the mechanism would weaken the legislative branch, play to executive strengths, and undercut popular government and the rule of law.

Statement by Louis Fisher, appearing before the House Foreign Affairs Committee, "War Powers for the 21st Century: The Constitutional Perspective" (PDF, 48KB), April 10, 2008. This testimony analyzes the pending bill, H. J. Res. 43, and generally holds that it succeeds in correcting serious deficiencies with the War Powers Resolution (WPR) of 1973. The pending bill is designed to safeguard and reinforce the constitutional system, representative government, and democratic values, whereas the WPR failed in its announced purpose to "fulfill the intent of the framers" and ensure "collective judgment" of the legislative and executive branches. Fisher's testimony raises caveats about language in H. J. Res. 53 regarding military actions pursuant to resolutions passed by the UN Security Council, creation of a consultative committee, and congressional reliance on judicial review.

Louis Fisher, "Thomas F. Eagleton: A Model of Integrity" (PDF, 64KB), 52 St. Louis U. L. J. 97 (2007).  This article describes the leadership of Senator Eagleton from 1971 to 1973 with the War Powers Resolution.  He backed a bill that tracked closely the intentions of the framers, permitting unilateral presidential action only in selected areas (e.g, repelling sudden attacks).  The House passed legislation placing no such restrictions but relying on presidential reporting.  The bill that emerged from conference committee so favored presidential power, in Eagleton's view, that he opposed it and spoke strongly for constitutional principles and legislative prerogatives.  Senator Eagleton "had taken an oath to support and defend the Constitution and that dedication provided all the lodestar he ever needed."

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Last Updated: 08/03/2012