Foreign policy has been a major point of contention between Congress and the President throughout US history. It represents a great challenge to the separation of powers defined by the Constitution. Recently this battle has intensified in the form of a legislative action proposed by Senators John McCain and Tim Kaine. In January of 2014, they announced legislation that would give Congress increased control over how the US uses the military in foreign conflicts. The proposed legislation would repeal the War Powers Resolution of 1973 and replace it with legislation gives Congress even more oversight over how the US uses its military in foreign engagements. This not only unnecessary, it is also a terrible idea. If passed it would severely compromise national security by limiting the President’s ability to respond quickly, effectively and in secret to emerging national security crises. It would also put these decisions in the hands of an ever increasingly dysfunctional and partisan Congress.
The US Constitution already divides power between the Executive and Legislative branches of government. Article II section 2 of the Constitution gives the President authority as commander-in-chief of the US Army and state militias when called into service. As commander-in-chief the President has the power to negotiate and sign treaties, to appoint foreign ambassadors and other ministers, and is allowed to consult with a hand selected group of advisors within the Executive branch on foreign policy issues. These powers are directly subject to Congressional oversight. Article I section 8 of the Constitution gives Congress the power to declare war, raise an army, appropriate funds for military action, ratify treaties, and to confirm Presidential advisors.
The War Powers Resolution of 1973 was an attempt by Congress to reign in the Nixon administration and regain war powers usurped by the Executive Branch after WWII. Post WWII the US found itself fighting protracted conflicts in Korea and Vietnam. Both of these conflicts were waged without a Congressional declaration of war.
Naturally, Nixon vetoed the bill. However, Congress successfully overrode Nixon’s veto, establishing the War Powers Resolution of 1973 as law.
The War Powers resolution sought to limits the President’s war power in several areas. It limits Executive war powers to conflicts pursuant to Congressional declarations of war and response to direct attacks against the US. Second, it...