How to Revive Congress's War Powers

16 Pages Posted: 15 Aug 2019 Last revised: 22 Oct 2019

Date Written: September 10, 2019

Abstract

Even though the United States has been at war around the globe for most of the last two decades, the vast majority of those serving in Congress have never voted to authorize a military operation. Among current members of Congress, only 18 of 100 Senators were in office when the most recent authorization - the 2002 authorization for use of force against Iraq - was enacted and only 58 of 435 Representatives were. As a result, there has been little democratic accountability for the many wars the United States has waged in the past seventeen years, which have cost trillions of dollars and thousands of American lives.

The institutional structure for authorizing military force by the United States is obviously broken. There is no doubt that part of the problem is the absence of political courage among many of our elected officials. Too many members of Congress are all too happy to abdicate their Constitutional responsibility and allow the President to go it alone, taking all the political risk. No institutional reform can fix that. But at least part of the problem is that the system of checks and balances is no longer working. This essay argues that a few revisions, some simple, some more ambitious, could significantly strengthen the capacity to act for members of Congress willing to do so.

This essay argues for three separate reforms. First, the War Powers Resolution should be revised to include a definition of “hostilities.” This is a gap in the original resolution, and filling this gap could, in one simple step, substantially strengthen the rest of the resolution and the ability of Congress to constrain the President. Second, Congress should enact “Rules for Limited War” that would create a default sunset for all new authorizations. Third, the War Powers Resolution should be revised to make explicit that any use of military force in contravention of international law is prohibited. While none of these suggested reforms addresses all of the problems plaguing the system for authorizing the use of military force, each would help reset the balance in the right direction.

Keywords: War Powers, War Powers Resolution

JEL Classification: K10

Suggested Citation

Hathaway, Oona A., How to Revive Congress's War Powers (September 10, 2019). Yale Law & Economics Research Paper. Available at SSRN: https://ssrn.com/abstract=3436924 or http://dx.doi.org/10.2139/ssrn.3436924

Oona A. Hathaway (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-4992 (Phone)
203-432-1107 (Fax)

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