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A Roundtable on War Powers Reform

Scott R. Anderson, Matthew Waxman
Friday, November 15, 2019, 10:28 AM

A new set of essays explores the state and possible trajectory of modern war powers.

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In recent months, serious concerns over the Trump administration’s policies towards conflicts in Syria and Yemen—as well as this summer’s handful of near-misses with Iran—have led both Democrats and a growing contingent of Republicans to revisit the law governing when and how the United States goes to war. On Thursday, the Texas National Security Review published a policy roundtable consisting of several essays that deal with this question of war powers reform from a diverse array of perspectives. We were both pleased to be asked to contribute and wanted to flag it for Lawfare readers who are likely to find it especially of interest.

Tess Bridgeman and Steve Pomper open the discussion with an introductory piece that synthesizes several key findings of the other three pieces. While acknowledging the different perspectives among the other authors on the feasibility and likely effectiveness of statutory war powers reform, they identify a common theme among the pieces: the need for more congressional involvement in the initiation and conduct of wars. They conclude that statutory reform may be the most effective way to force that involvement, though they acknowledge other possible avenues as well.

One of us, Matthew Waxman, then writes to express doubts about the likely efficacy of—and need for—statutory war powers reform. He observes that the strong incentives that have driven the modern executive branch’s expansive war powers—including its greater institutional capacity to act with initiative and Congress’s limited political incentive to interfere with such efforts—are not going away anytime soon. Moreover, the breadth, diversity, and rapidity of modern warfare make it a difficult subject to address through fixed legislation, especially by an institution as consensus-bound as Congress. Instead of looking for statutory fixes, Waxman argues that Congress (or even its individual members) should find ways to better exercise existing oversight powers to play a more active role in shaping U.S. military activities overseas.

From there, the other one of us, Scott R. Anderson, presents a detailed case study in how contemporary war powers operate: the debate over U.S. support for the Saudi-led intervention in Yemen. By detailing the congressional debate over Yemen and putting it in legal context, Anderson shows how members of Congress were able to use special priority procedures associated with the 1973 War Powers Resolution to force debates and votes that successfully pressured the Trump administration to adjust its Yemen policies. At the same time, he also finds very real limits to Congress’s formal legal authority over war, as Trump has been able to continue with his Yemen policies even over the objections of a majority of Congress.

Finally, Professor Oona Hathaway closes with one possible affirmative agenda for statutory war powers reform. She focuses on three steps: a clarified definition of “hostilities” as used in the War Powers Resolution, a mandatory sunset for authorizations for use of military force and the incorporation of certain international law limitations into U.S. domestic law. Layered on top of the existing War Powers Resolution, she maintains that these changes would both constraining dangerous overreach by the executive branch while forcing greater engagement by Congress—an arrangement she maintains is close to that intended by the Constitution.

The sum total is a valuable survey of perspectives and options on war powers reform, as well as the state of contemporary war powers in the United States. We encourage Lawfare readers with an interest in these issues to read the full pieces, and would welcome any feedback they may see fit to provide.

Scott R. Anderson is a fellow in Governance Studies at the Brookings Institution and a Senior Fellow in the National Security Law Program at Columbia Law School. He previously served as an Attorney-Adviser in the Office of the Legal Adviser at the U.S. Department of State and as the legal advisor for the U.S. Embassy in Baghdad, Iraq.
Matthew Waxman is a law professor at Columbia Law School, where he chairs the National Security Law Program. He also previously co-chaired the Cybersecurity Center at Columbia University's Data Science Institute, and he is Adjunct Senior Fellow for Law and Foreign Policy at the Council on Foreign Relations. He previously served in senior policy positions at the State Department, Defense Department, and National Security Council. After graduating from Yale Law School, he clerked for Judge Joel M. Flaum of the U.S. Court of Appeals and Supreme Court Justice David H. Souter.

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