When it comes to the question of war, who has the final say — the president or Congress? That is the question the National War Powers Commission, co-chaired by Interim College President Taylor Reveley, tried to clarify with their new proposal.
The Commission, which was led by former Secretaries of State Warren Christopher and James Baker, presented the War Powers Consultation Act of 2009 to Congress Tuesday, raising the question: what exactly was wrong with the old resolution, the War Powers Act of 1973, and with the Constitution itself?
“There are all kinds of issues regarding the constitutional distribution of war powers,” government Professor Larry Evans said. “Every president beginning with Nixon has argued that the War Powers Resolution is both unconstitutional and unworkable.”
The Constitution states that Congress holds the power to declare war, but that the president is commander-in-chief. As commander-in-chief, he or she can send troops to war locations, even if Congress hasn’t formally declared war. This creates a gray area within the constitution that has been problematic for presidents and the Congress for decades.
“The Constitutional language on the war powers is full of competing provision. It gives some powers to Congress and some powers to the president,” Reveley said in a phone interview. “It’s full of abstract language. Those phrases can be interpreted in many different ways. Nobody has come up with practical ways of doing it since 1789.”
Reveley attributed the delayed response to the problem to a lack of cooperation between the political parties and between the legislature and executive.
“This particular war powers commission is the first time anyone has put together a group of really experienced people in government … who are bipartisan … [and] who have come together using their practical experience to try to come up with a process that would actually work to get the Congress and president consulting one another,” he said.
Vice Provost for International Affairs Mitchell B. Reiss said the commission’s findings were a long time coming.
“Many people, including leading experts on war powers like President Reveley, have long pointed out the shortcomings of the current legislation,” he said. “This proposal, if enacted, would institute procedures for greater consultation between the executive and legislative branches.”
Reveley was optimistic that the commission’s proposal would eventually replace the 1973 act.
“I think the chances are realistic,” Reveley said. “Whether that means fifty-fifty or sixty-forty — one way or the other — I think there’s a real shot at it.”
Reveley also noted that the timing of the proposal may work to the Commission’s advantage.
“We’re suggesting that the proposed statute be considered during the first hundred days of the new administration,” he said, placing its possible adoption early next year.
Reiss was less enthusiastic about the policy’s quick adoption, saying it may depend on whether the new administration views the issue as a priority.
“It is possible,” he said, “although I do not think it will be at the top of the agenda for either the new president or new Congress come next January.”
According to Reiss, the current conflicts overseas had likely had little influence on the timing of the proposal.
“The commission went out of its way not to say anything about the recent war in Iraq,” he said.
Coincidentally, there have now been two Deans of the Marshall-Wythe Law School to make a significant mark on the nation’s war powers policy.
“One of the main Senate sponsors [for the 1973 act] was the late William Spong, senator from Virginia, and — later on — dean of [the] William and Mary law school,” government Professor Clay Clemens said.
Thanks to Reveley’s participation, the College has been placed in the national spotlight.
“It is very impressive and reflects well on the College, especially given the high caliber of the commission membership and the importance of the issue,” Clemens said.
“It’s always wonderful to see William and Mary in the news in a positive fashion,” he said. “I think this is a positive fashion, so I think it’s good for us.”