Can the President and Congress Establish a Legislative Veto Mechanism for Drawing Down a Long And Controversial War?

Charles Tiefer, University of Baltimore

Abstract

In a long, controversial war the like one in Afghanistan, the President may want a (faster) drawdown schedule about which Congress is suspicious. Congress may enact an appropriation that allows the President’s drawdown, subject to a mechanism that allows the drawdown to be deferred by votes of the House and Senate. Critics may say the mechanism violates INS v. Chadha , the Supreme Court decision invalidating the legislative veto. Analyzing the constitutional issues illuminates the larger issues of Congressional mechanisms for war. The article lays the basis for such analysis. This includes the little-known background of the concurrent resolution mechanism in war powers. It also addresses the relevance of how the 2001 Congressional authorization for the use of military force needs a channel for fresh Congressional action a decade later. The Conclusion treats how the issues for war powers analysis have changed from the classic ones to the new cutting-edge ones of the war in Afghanistan.