WASHINGTON, D.C. – U.S. Senator Tim Kaine delivered remarks on the Senate floor today to announce his efforts with Senator John McCain (R-AZ) to reform the War Powers Resolution in a way that lays out a clear consultative process between Congress and the President on whether and when to engage in military action. Senators Kaine and McCain released a joint statement committing to work with their colleagues to codify such a process:
“As we mark the 40th anniversary of the 1973 War Powers Resolution, we believe now is the time to start working together to update it. The current resolution has been ineffective at establishing a consultative process between the executive and legislative branches of our government over our nation's most important decision – whether or not to send our men and women in uniform into harm’s way. At the same time, the changing nature of armed conflict and technology are raising challenging new war powers questions that our Founders never could have envisioned. We are both passionate about establishing a dialogue between the two branches of government that is clear, practical, and true to the Constitution. This issue deserves our attention now. We owe it to those who protect our nation, and to the American public.”
During his remarks, Kaine argued that the debate over Executive and Legislative consultation on war powers dates back to the Constitution of 1787 with Article I, Section 8 of the Constitution which provides that “Congress shall have power . . . to declare war,” and Article II, Section 2 designating the President is the “Commander in Chief” of the nation’s armed forces. Since that time, the United States Congress has only formally declared war five times, but there have been more than one hundred cases where Presidents of both parties have initiated military action without prior Congressional approval. Kaine argued it was important to act now to shore up this process, especially as demands continue to increase for American action in conflicts across the globe. During his recent travel to the Middle East, including Afghanistan, Kaine was asked time and again after hearing about conflicts in the region, “What will America do?”
“Answering this question is not easy. But I believe that finding answers is made more difficult because we do not have any agreed upon consultative process between the President and Congress,” said Kaine. “The time for change is upon us. We struggle with urgent military decisions that demand better communication between the President, Congress and our citizens,” Kaine continued.
In 2007, the Miller Center at the University of Virginia empanelled a bipartisan National War Powers Commission, led by former Secretaries of State James Baker and Warren Christopher. After a 14 month process including legislative, administrative, diplomatic, military and academic leadership, the Commission issued a unanimous report to the President and Congress, urging the repeal of the War Powers Resolution. In addition, the report outlined principles for a replacement measure designed to promote transparent dialogue and clear decision-making. Kaine spotlighted the Commission’s report as a strong starting point that would preserve the constitutional powers of each branch while establishing a straightforward and constitutionally sound process. The House and Senate Foreign Affairs and Foreign Relations committees held hearings in the spring of 2008.
“We all have an interest in finding a more effective process for making the most important decision that our government ever makes—whether to initiate military action,” Kaine said. “We can craft a process that is practical, constitutional and effective in protecting our nation. We owe this to those who fight. And we owe it to the American public.”
A full transcript of Kaine’s remarks on the floor follows:
Mr. President, I rise in order to note an important anniversary.
Forty years ago this week the Senate passed the War Powers Resolution of 1973. The Resolution was passed in a time of great controversy—during the waning days of the Vietnam War. The purpose of the Resolution was to formalize a regular consultative process between Congress and the President on the most momentous decision made by our nation’s government—whether to engage in military action.
The question of executive and legislative powers regarding war date back to the Constitution of 1787. Article I, Section 8 of the Constitution provides that “Congress shall have power . . . to declare war.” Article II, Section 2 of the Constitution provides that the President is the “Commander in Chief” of the nation’s armed forces. In the 226 years since the Constitution was adopted, the powers of the respective branches in matters of war have been hotly debated. In a letter between two Virginians in 1798, James Madison explained to Thomas Jefferson: “The Constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch most interested in war, and most prone to it. It has accordingly, with studied care, vested the question of war in the Legislature.”
Madison’s definitive statement notwithstanding, the intervening history has been anything but definitive. Academics and public officials have advanced differing interpretations of the Constitutional division of power. There is no clear historical precedent in which all agree that the Legislative and Executive branches have exercised their powers in a consistent and accepted way. And the courts have not provided clear guidance to settle war powers questions.
Some facts however, are very clear. The United States Congress has only formally declared war five times. In many other instances, Congress has taken steps to authorize, fund or support military action. And in well over 100 cases, Presidents have initiated military action without prior approval from Congress.
Congress supposed 40 years ago that the War Powers Resolution of 1973 would resolve many of these questions and establish a formal process of consultation on the decision to initiate military action. But, this was not the case. President Nixon vetoed the Resolution and, while Congress overrode the veto, no Administration since has accepted the constitutionality of the Resolution. Most recently, President Obama initiated American involvement in a civil war in Libya without Congressional approval. The House of Representatives rebuked the President for that action in 2011. But the censure rang somewhat hollow because most legal scholars today accept that the 1973 Resolution is an unconstitutional violation of the separation of powers doctrine.
So why does this matter?
We are in the twelfth year of war. The attack on our country by terrorists on September 11, 2001 was followed, one week later, by the passage of an Authorization for Use of Military Force that is still in force today. The Authorization is broadly worded and both the Bush and Obama Administrations have given it an even broader interpretation. In recent hearings before the Senate Armed Services Committee, Administration officials expressed the opinion that the Authorization of September 18, 2001 might justify military action for another 25 to 30 years, in regions spread across the globe, against individuals not yet born, or organizations not yet formed, on 9/11. This was likely not contemplated by Congress or the American public in 2001.
Congress is currently grappling with the status of the Authorization and whether it should be continued, repealed or revised. We face immediate decisions about the reduction of American troops in Afghanistan and the size of a residual presence we will leave in that country to support the Afghan National Security Forces. We are wrestling with the scope of national security programs adopted in furtherance of the Authorization. And, we are engaged in serious discussion about new challenges—from the rebellion in Syria to growing nuclear threats in Iran and North Korea.
All of these issues are very hard. Mr. President, I recently returned from a trip to the Middle East, a CODEL sponsored by Senator Cornyn, and accompanying us were Senators Cochran, Sessions, Boozman, Fischer, and in Afghanistan, Senators McCain and Graham. In Turkey and Jordan, we heard about the atrocities committed by the Assad regime in Syria and the flood of refugees pouring into those neighboring countries. In Afghanistan, we met with our troops and heard about the slow transition from NATO forces to Afghan security. In the United Arab Emirates, we discussed the growing threat of Iran throughout the region. And we stopped at the Landstuhl Regional Medical Center in Germany to visit recently wounded Americans—and NATO partners—who have sacrificed so much in this long war against terrorism. In the voices of our troops, and our diplomats, and our allies, and our wounded warriors, we heard over and over a basic question: “What will America do?”
Answering this question is not easy. But I believe that finding answers is made more difficult because we do not have any agreed upon consultative process between the President and Congress. The American public needs to hear a clear dialogue between the two branches justifying decisions about war. When Congress and the President communicate openly and reach consensus, the American public is informed and most likely to support decisions about military action. But when there is no clear process for reaching decision, public opinion with respect to military action may be divided, to the detriment of the troops who fight and making it less likely that government will responsibly budget for the costs of war. I believe many more lawmakers for example, would have thought twice about letting sequestration cuts take effect if there had been a clear consensus between the President and Congress about our current military posture and mission.
So at this 40th anniversary, I think it’s time to admit that the 1973 Resolution is a failure and we need to begin work to create a practical process for consultation between the President and Congress regarding military action. In 2007, the Miller Center at the University of Virginia empanelled a bipartisan National War Powers Commission under the leadership of former Secretaries of State James Baker and Warren Christopher. The Commission included legislative, administrative, diplomatic, military and academic leadership. The Commission issued a unanimous report to the President and Congress, urging the repeal of the War Powers Resolution and its replacement by a new provision designed to promote transparent dialogue and decision-making. The Commission even proposed a draft statute, preserving the constitutional powers of each branch while establishing a straightforward consultative process to reach decision in a way that would gain support from the American public. The House and Senate Foreign Relations Committees held hearings on the report in the spring of 2008, but the time was not yet right for change.
I believe the time for change is upon us. We struggle with urgent military decisions that demand better communication between the President, Congress and our citizens. President Obama has discussed this very need during his 2013 State of the Union address and also during his recent speech at the National Defense University.
As we reach the fortieth anniversary of the failed War Powers Resolution, Senator John McCain has agreed to work with me to form a group of Senators committed to finding a better way. Senator McCain and I serve together on both the Armed Services and Foreign Relations Committees. I have profound admiration for his services to this country, both as a military veteran and a veteran Senator. I am a newcomer. But veterans and newcomers alike have an interest in finding a more effective process for making the most important decision that our government ever makes—whether to initiate military action. We can craft a process that is practical, constitutional and effective in protecting our nation. We owe this to those who fight. And we owe it to the American public.