4

The system of congressional oversight in the U.S. with regard to acts of war has been broken for a long time. The year 1942 was the last time the U.S. formally declared war. Since then there have only been countless resolutions, if anything at all.
The War Powers Resolution of 1973 attempted to reign in the power of the presidency to commit de facto acts of war with at best questionable success.
Ignoring the matters of its constitutionality and instead focussing on its efficacy, it becomes obvious that the War Powers Act doesn't even come close to the spirit of the original constitutional principle of laying the power to declare war in the hands of the legislature, since it is very easy for modern presidents to create potentially irreversible facts in a very short matter of time.
Maybe the starkest current example for that issue was the open assassination of the iranian general Soleimani, which by all conventional standards constitutes an act of war that could have very easily resulted in a de facto declaration of war.

While it is easy to criticize the current state of affairs, it should be pointed out that it is actually very hard to come up with a modern solution for this problem:
When the U.S. constitution was crafted, the world was much less complex and turned significantly slower. Wars were usually fought against other states (with some notable exceptions) compared to today where it is mostly stateless actors or insurgents.
Back then congress actually had the time to debate issues of war, whereas today even a single day can be an eternity in the affairs of the world.
Or even more general: What does actually constitute an act of war in the modern world?
Assassinating a foreign general? Declaring an embargo? Waging war by proxy? Supplying arms/ressources to the enemy of the enemy (or enemy of the ally of the enemy)? Cyberattacks? Election interference?

What I am interested in is if there are any tangible proposals for the establishment of a new modern war powers system in the U.S.?

I am aware of the fact that the president can do more in practice than he should be able to do in theory (for example with executive orders) and that if push comes to shove there are only two ways congress can reliably prevent a sitting president from engaging in unwanted actions: Impeachment and the power of the purse (cutting off the money supply).
Therefore I am willing to give some leeway with regard to how the proposal would actually work out in practice, but a really good proposal should have an effective "contingency plan" for a misbehaving president that doesn't only consist of the the aforementioned impeachment and power of the purse.

2

What I am interested in is if there are any tangible proposals for the establishment of a new modern war powers system in the U.S.?

The following excerpt from a Congressional Research Service report identifies several proposed amendments to the War Powers Resolution. These are shown as an emboldened list. The text of the proposals is not shown for brevity.

The War Powers Resolution: Concepts and Practice, Updated March 8, 2019.

Proposed Amendments

After four decades in existence, controversy continues over the War Powers Resolution and its effectiveness and appropriateness as a system for maintaining a congressional role in the use of armed forces in conflict. One view is that the War Powers Resolution is basically sound and does not need amendment. Those who hold this opinion believe it has brought about better communication between the two branches in times of crisis, and has given Congress a vehicle by which it can act when a majority of Members wish to do so. The Resolution served as a restraint on the use of armed forces by the President in some cases because of awareness that certain actions might invoke its provisions. For example, the threat of invoking the War Powers Resolution may have been helpful in getting U.S. forces out of Grenada, in keeping the number of military advisers in El Salvador limited to 55, and in prodding Congress to take a stand on authorizing the war against Iraq.

A contrary view is that the War Powers Resolution is an inappropriate instrument that restricts the President’s effectiveness in foreign policy and should be repealed. Those with this perspective believe that the basic premise of the War Powers Resolution is wrong because in it, Congress attempts excessive control of the deployment of U.S. military forces, encroaching on the responsibility of the President. Supporters of repeal contend that the President needs more flexibility in the conduct of foreign policy and that the time limitation in the War Powers Resolution is unconstitutional and impractical. Some holding this view contend that Congress has always had the power, through appropriations and general lawmaking, to inquire into, support, limit, or prohibit specific uses of U.S. Armed Forces if there is majority support. The War Powers Resolution does not fundamentally change this equation, it is argued, but it complicates action, misleads military opponents, and diverts attention from key policy questions.

A third view is that the War Powers Resolution has not been adequate to accomplish its objectives and needs to be strengthened or reshaped. Proponents of this view assert that Presidents have continued to introduce U.S. armed forces into hostilities without consulting Congress and without congressional authorization. Presidents have cited Section 4(a)(1) on only one occasion—Mayaguez—and by the time the action was reported, it was virtually over.

Holders of this third view have proposed various types of amendments to the War Powers Resolution. These include returning to the version originally passed by the Senate, establishing a congressional consultation group, adding a cutoff of funds, and providing for judicial review. A general discussion of these categories of possible changes follows.

  • Return to Senate Version: Enumerating Exceptions for Emergency Use

  • Shorten or Eliminate Time Limitation

  • Replace Automatic Withdrawal Requirement

  • Cutoff of Funds

  • Elimination of Action by Concurrent Resolution

  • Expedited Procedures

  • Consultation Group

  • Judicial Review

  • Change of Name

  • United Nations Actions


Legislation in the 116th Congress (2019-2020) includes 23 bills or resolutions referencing the War Powers Resolution (50 U.S.C. 1541).

Three are directed toward "reforming" the War Powers Resolution.

  1. S.J.Res.60 - War Powers Reform Resolution

Introductory text from the resolution

To amend the War Powers Resolution to improve requirements and limitations in connection with authorizations for use of military force and narrowings and repeals of such authorizations, and for other purposes.

  1. H.J.Res.83 - War Powers Reform Resolution

Introductory text from the resolution

To amend the War Powers Resolution to improve requirements and limitations in connection with authorizations for use of military force and narrowings and repeals of such authorizations, and for other purposes.

  1. H.J.Res.66 - War Powers Amendments of 2019

CRS Summary as introduced in the House

This joint resolution revises the War Powers Resolution, a law designed to limit the President's power to introduce Armed Forces into hostilities. Changes include shortening the time that Armed Forces may be involved in hostilities without congressional action and providing for judicial enforcement.

The President shall remove any Armed Forces introduced into hostilities without congressional approval within 30 days unless Congress (1) declares war, (2) enacts a joint resolution specifically authorizing such use of the Armed Forces, (3) extends this deadline by 30 days, or (4) is unable to meet because of an attack on the United States. Current law allows such use of the Armed Forces for 60 days from when the President first reports to Congress about the engagement and allows for a 60-day extension.

If Congress takes no such actions, funds may not be used to continue Armed Forces involvement in the hostilities, except to withdraw.

The bill removes a provision requiring the removal of such engaged Armed Forces if Congress passes a concurrent resolution requiring such removal.

A member of Congress may sue in district court for an order directing the President to comply with this bill. A judgment in such an action shall be directly appealable to the Supreme Court.

The bill amends various provisions relating to (1) the President reporting to and consulting with Congress regarding the use of the Armed Forces without congressional authorization, and (2) procedures for the expedited handling of joint resolutions related to such use of force.

| improve this answer | |

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .