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77 Geo. L. J. 367 (1988-1989)
The War Power at a Constitutional Impasse: A Joint Decision Solution

handle is hein.journals/glj77 and id is 389 raw text is: COMMENTARY The War Power at a Constitutional Impasse: A Joint Decision Solution SENATOR JOSEPH R. BIDEN, JR.* AND JOHN B. RITCH III** I. INTRODUCTION During a period of relative tranquility at home and abroad, the question of how America goes to war begins to seem academic if not anachronistic. But the war power occupies a solemn place in our constitutional system, and if history is any guide, the issue-not just of war, but the process by which we decide on it-will once again acquire prominence and passion. This abiding question warrants dispassionate analysis in the calm before those fevers arise. With the American Constitution now 200 years old, one might expect so fundamental a question to have been resolved-by two centuries of constitu- tional experience, if not by the Constitution itself. But in fact the reverse has occurred. Today the war power question is debated not in its nuances, but in its essence by two sharply conflicting factions whose arguments are charged with all the energy and ideology of two decades of dispute over policy and principle. Ironically, the focus for this contention-the lightning rod-is a sixteen- year-old law intended by its framers to resolve the issue and facilitate har- mony by establishing a constitutionally sound and functioning mechanism for decision. At least thus far, this admirable aim has met defeat. Enacted over the veto of President Nixon, who attacked it as an unconsti- tutional infringement on the Executive's powers as Commander in Chief, the * Joseph R. Biden, Jr., is a United States Senator representing the State of Delaware. He is Chairman of the Senate Judiciary Committee, the Senate Foreign Relations Subcommittee on Euro- pean Affairs, and the NATO Assembly's Special Committee on Alliance Strategy and Arms Con- trol. Recently, Senator Biden served as Chairman of the Senate's Special Subcommittee on War Powers. ** John B. Ritch III is deputy staff director of the Senate Foreign Relations Committee and the Committee's senior advisor on European and Soviet affairs, and served as staff director of the Sen- ate's Special Subcommittee on War Powers. This commentary is based on a speech delivered by Senator Biden at the Georgetown University Law Center on October 3, 1988. The authors wish to thank Professor Michael J. Glennon of the University of California-Davis, the former Legal Counsel of the Senate Foreign Relations Committee, for reviewing drafts of this commentary and for assistance in the preparation of parts of the draft Use of Force Act described herein.

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