The Power to Consult about War?

“In no part of the Constitution is more wisdom to be found,” James Madison wrote in 1793, “than in that clause which asks the president to give Congress a courtesy call whenever he’s picked a new country to invade.”  Well, no, that’s not actually what he said.  It went more like this:

In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture to heterogeneous powers, the trust and the temptation would be too great for any one man.

How to check that temptation?  In 1973, Congress tried the War Powers Resolution, a deeply flawed piece of legislation that has never so much as inconvenienced a president bent on war.  Former Secretaries of State Jim Baker and Warren Christopher – and a bipartisan panel of DC bigwigs – have a new answer: semi-mandatory consultation with Congress backed up by a dread “resolution of disapproval” (that the president can veto!).  Somehow I don’t think this is going to work.   

I haven’t had a chance to read the full report yet, but judging from the coverage and the op-ed Baker and Christopher penned for yesterday’s Times, the Commission’s proposal seems like an exercise in High Broderism.  For some serious attempts at putting teeth in the War Powers Resolution, check here and here

However, as I explain in the Cult of the Presidency, I’m skeptical that any of these megastatute solutions are going to work.  Because no Congress can truly bind a future Congress and no statute can force the courts to resolve separation of powers fights they’d rather duck, such legislative solutions tend to be about as effective as a dieter’s note on the refrigerator.  Unless and until ordinary voters demand that Congress stand and be counted on issues of war and peace–and defund unauthorized wars–we’ll continue as before.  Hey, maybe we are the change we’ve been waiting on.