Ron Paul and James Baker Debate War Powers

At this hearing before the House Foreign Affairs Committee, Ron Paul and former Secretary of State James Baker clash over the role of Congress in the declaration of war. Both Paul and Baker want to eliminate the War Powers Act of 1973, but while Paul wants to replace it with nothing, Baker argues in favor of a new War Powers Act.

The original War Powers Resolution of 1973 is a federal law allowing the President to send U.S. armed forces into action abroad only by authorization of Congress, or if the United States is already under attack or serious threat. The War Powers Resolution requires that the president notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days without an authorization of the use of military force or a declaration of war. The Resolution is often regarded as unconstitutional, not just by strict constitutionalists like Ron Paul, but also by Presidents who actually regard it as a limitation of their powers.

James Baker’s new War Powers Act would, except for emergencies, require the President and a small committee of Congressional insiders to discuss the matter before going to war. Congress would then have to vote on a resolution of approval within the first 30 days of the war. If the resolution of approval was defeated in either House, any member of Congress could propose a resolution of disapproval. Such a resolution would have the force of law (and thereby end the war) only if it were passed by both houses and signed by the President, or the President’s veto were overridden. As Ron Paul points out, this effectively means that the President + a few Congress insiders + one third of Congress can effectively declare war.

The only countermeasure available to Congress as a whole would be to block future spending on the conflict, but Ron Paul laments that any such measures never gain traction because most Congressmen live in great fear of being branded as “un-American” and “not supporting the troops”.

Ron Paul’s solution, therefore, is to abolish the War Powers Act. The President would still have the power to act in emergencies, but it would be the responsibility of the entire Congress, rather than that of a few insiders, to actually declare war.

Date: 3/5/2009
Committee: House Foreign Affairs Committee
Hearing: The Role for Congress and the President in War: The Recommendations of the National War Powers


Introductory Statement

Chairman: The gentleman from Texas, Mr. Paul.

Ron Paul: Thank you, Mr. Chairman and welcome to the Panel. I do appreciate the chairman bringing this very important issue before us because it is something that I’ve been talking about for a long time. I think it’s crucial, and I agree that the War Powers Resolution has not functioned very well and a lot of people have argued that it is unconstitutional.

Of course, the presidents have argued that it was unconstitutional because they wanted more power and more leeway, and others such as myself have argued that it has given the President too much power, actually legalized war for 90 days and it is very difficult to get out of a war once it gets started. Since World War II, we’ve had essentially perpetual war with no significant Congressional approval in that there has never been a declaration of war.

There’s a lot of ambiguity, and quite frankly, I think the ambiguity comes from the fact that we don’t follow precisely, which is very clearly stated in the constitution, that we can’t go to war unless the war is declared. We’d be a lot better off if we would just follow that set mandate.

Confronting James Baker

Ron Paul: Thank you, Mr. Chairman. I hear 3 points that the panel has made:

  • That the War Powers Resolution has been ineffective; I agree with that.
  • Should be repealed, I agree with that.
  • The conclusion though I don’t agree with, that we need a new law, and I think that’s where the real important part comes.

When the Congress passed the War Powers resolution in the 1970s it was motivated by the anti-war people, thinking it would help. But the unintended consequence was disastrous. Not only the chaos that you describes, but the fact that it legalized war for 90 days. That’s what it did. It gave greater power to the President, not less power to the President, and it took away this assumption that Congress had this responsibility to declare war.

The panel says that they do not pretend to resolve the constitutional issue, which is fine; that’s not your job. And you reassure us that the courts seem to want to stay away, so we don’t have to worry about the courts. But what we should worry about is our oath of office and our responsibility here as Congresspeople, and that to me is the ominous responsibility we have.

But I am reassured by Mr. Baker’s comment that if it tilts towards one branch of government then maybe this thing won’t get passed, and the way I interpret it, it obviously does, and I will challenge the panel on this and then they can answer my comment.

The reason I challenge this is, first, the consultation isn’t with the Congress. You pick out a few people, select people, and they are supposed to represent us. No. the responsibility for war is the Congress, not a select group.

So the President starts a war and it lasts a week, he comes to this select company and they say, “Okay, sounds like we better do it.” Then after 30 days we have this opportunity to vote. Then we vote that we disapprove the war, and then we have to have another vote, a vote of disapproval.

So we pass that, and then the President vetos it. So what we are establishing here is the power of the President to pursue war with a select committee, and then endorsed by the Congress, with one third of the Congress, because he can veto this. I think this is going absolutely in the wrong direction, and I think as Mr. Robark has pointed out earlier, it’s mostly because we don’t live up to our commitment.

Once again I think the panel makes the point that we do have a fallback and the fallback is that we can deny funds. But then we’re politically trapped. We never could do that in Korea or Vietnam. It goes on and on because then we get painted as un-American as though we don’t care about the troops.

So once they get the upper hand they can start the war, run the war, get only a third of the congress to endorse the war, get the people in harm’s way, and then they say, “Oh, you’re un-American if you vote against this process”.

So I ask the panel: show me why this is not tilting power towards the executive branch and to a small group of Congressmen rather than reestablishing the principal that in this country, very precisely it was stated that the Congress declares war. This has no interference whatsoever from the President to act in emergencies. That is clear cut, we know that. Even before the War Powers Resolution this doesn’t change it.

So why am I wrong in thinking that this is tilting towards the President and against the Congress?

James Baker: I think you’re wrong, Congressman, because if you don’t do anything, you have the situation you’re talking about. You’re not going to have anything and the presidents should have to do what they consider necessary to protect the national security of the country. And they have the power, they claim, under the Constitution to do that. And you’re not going to be able to do anything about it.

So you’re better off, I think, we think, if the two branches consult with each other rather than continuing to knock heads over who has the power, the ultimate power. Because we’re not going to get an answer to that.

Ron Paul: Of course, I put most of the blame on the Congress for being derelict in their responsibility. But if presidents go out and start wars, sure the Congress has something to do with it. They shouldn’t fund him, and if necessary they should impeach the President.
But this whole thing… answer my question about one-third of the congress… actually, a third of the Congress and the President can pursue war. Is that not correct?

James Baker: Well, you say that because the President has the right to veto bills presented to him under the Presentment Clause. That happens to be in the Constitution. If you don’t like that you can get a Constitutional amendment passed that would delete that. I don’t think you will have any success.

Ron Paul: I’m not arguing that point. I’m arguing whether or not I am right that one-third of the Congress and the President can pursue war. That’s the point.

James Baker: No, you’re not right, because you have under our legislation, specifically, not only a right to vote but a duty to vote with respect to it. And if it’s voted down here in the Congress then you’re just on the losing side. That’s what that is.

Speaker: I’m only concerned the votes are going to come and I’m trying to get as many members as possible, so the 5 minutes has expired and I apologize.