My first opportunity to read John Hart Ely's ideas on war powers came in 1988, when he published the antecedent of one chapter of War and Responsibility as an article in the Columbia Law Review titled Suppose Congress Wanted a War Powers Act that Worked. The punctuation – without a question mark – makes an important point: The verb "suppose" invites us not to speculate about a counterfactual hypothetical, but rather to assume that Congress must want its own creation to work. Professor Ely's project was to show Congress how to fix it.
But it was already evident in 1988, and had been for some time, that Congress did not want a War Powers Act that really worked. Indeed, the dominant legislative proposal at that time, known as the Nunn-Byrd-Warner bill, would have improved the fit between congressional prescription and executive behavior by relaxing the strictures of the War Powers Resolution. Current proposals would improve that fit more forthrightly, simply by repealing the Resolution. It was also evident then that Congress didn't – and apparently still doesn't – want to discharge the responsibilities concerning war and peace conferred upon Congress by the Constitution. Hence in War and Responsibility, as in his earlier article, Professor Ely devotes considerable thought to the notion of forcing (or at least inducing) Congress to live up to its constitutional responsibilities.
Many of us regret that Professor Ely's ideas have not been taken more seriously by the most important audience for which they were intended, namely the U.S. Congress. Congress, however, is not the only audience that needs to hear his message. The message of War and Responsibility should be the topic of conferences not only in Miami or Washington, but also in Buenos Aires, Lima, Quito, Tokyo, Bonn/Berlin, Rome, Ankara, Pretoria, and maybe even Minsk or Moscow.
Law | Military, War, and Peace | National Security Law
Lori F. Damrosch,
Constitutional Control over War Powers: A Common Core of Accountability in Democratic Societies?,
U. Miami L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3648