[Congressional Record Volume 159, Number 103 (Thursday, July 18, 2013)]
[Senate]
[Pages S5770-S5771]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                     War Powers Resolution of 1973

  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 dates 
back to the Constitution of 1787. Article I, section 8 of the 
Constitution provides that ``Congress shall have the 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 the 
following 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 the legislative and executive branches have exercised those 
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 Congress has only formally 
declared war five times. In many other instances, Congress has taken 
steps to authorize, fund, or support military action. 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 the 1973 resolution is an 
unconstitutional violation of the separation of powers doctrine.
  So why does this matter? We are in the 12th year of war. The attack 
on our country by terrorists on September 11, 2001, was followed 1 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 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 that were 
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. I recently returned from a trip to 
the Middle East--a codel sponsored by Senator

[[Page S5771]]

Cornyn. Accompanying us were Senators Cochran, Sessions, Bozeman, 
Fischer, and in Afghanistan, Senators McCain and Graham.
  In Turkey and Jordan we heard about the atrocities committed by the 
Asad 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 made a meaningful stop at 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, our diplomats, our allies, and 
our wounded warriors, we heard over and over again a basic question: 
What will America do?
  Answering this question isn't easy, but I believe 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 the war. When Congress and the President communicate openly and 
reach consensus, the American public is informed and more 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 
cost 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 is 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 impaneled the 
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 dialog and decisionmaking. 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 2008, but the time was not yet right for change.
  I believe the time for change is upon us. We struggle today 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 40th 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 service 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 this to the American public.
  Mr. President, I yield the floor, and I suggest the absence of a 
quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. RUBIO. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. RUBIO. Mr. President, I ask unanimous consent that I be 
recognized to speak for up to 12 minutes as in morning business.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.