War Powers in the 21st Century

There’s been a lot of discussion about the president’s power to establish a Status of Forces Agreement (SOFA) with Iraq in the absence of Congressional approval. Less has been given to just what those forces can be authorized to do, and by which branch of government. Fortunately, the House Committe on Foreign Affairs had another hearing last week, this time a discussion of the War Powers Resolution and the proposed bill revising it (which I was admittedly unaware of).

Among the noteworthy testimony from constitutional scholars, that of Michael Glennon stands out, both for its treatment of the Iraq War resolution, as well as the future status of American forces in Iraq. In a nutshell, Glennon argues that the resolution has essentially expired, and that in the absence of a UN mandate, the president has no Constitutional authority to set the conditions whereby American forces will fight in Iraq (ie. to protect its territorial integrity) in the absence of Congressional approval.

The tension between the Executive branch’s power to declare war with the Legislative branch’s power to declare it has increased in significance due to the Bush doctrine of pre-emptive war, and the impact of technology on time and distance. So it’s not surprising that most of the testimony supports the proposed revisions to the War Powers Resolution, with some reservations attached. Nevertheless, the consensus seems to be that the most effective mechanism for limiting the Executive’s power to wage war is the power of the purse. In other words, complaining about Executive overreach probably won’t accomplish anything until Congress decides to cut off the funding.

Interestingly enough, that kind of showdown is unlikely in the event of an Obama or Clinton presidency. A McCain presidency, on the other hand, might be more useful for defining the limits of executive war-fighting powers.

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