Dan K, brought up several great questions in the comments of the Constitutional War Amendment, and I thought I would re-post my response here.
DK: Interesting approach, but I would be concerned about misapplication by Congress to justify maintaining the current military machine, especially with the shift in warfare to conflicts involving violent non-state actors.
RSW: Misapplication will certainly occur as the state cannot be trusted to obey its limits. After all, if the state stayed within its constitutional limits, this amendment wouldn’t be necessary.
Congress is hesitant to declare war; otherwise they would be doing it. A recorded vote on a war declaration is something the opposition can run against in the next election, and individual members of congress don’t want that.
Violation of the amendment is also grounds for impeachment, which means the congress will always be looking for overstep by the executive as long as they are not the same party. I believe that Bush and Obama would both have been impeached under this amendment at the points in their presidencies when they lost the super majority.
DK: If Congress declares war on North Korea, where would deployment of armed forces be okay? North Korea, South Korea, Japan, China, Russia, etc.? Non-local regions/nations, e.g. Iran, Syria? What’s the limit?
RSW: What’s the limit now? The president has troops in hundreds of countries around the world and no one can do anything about it. At least the argument could be made that troops in Korea are not justified during war with ISIS and impeachment could be threatened.
DK: If Congress declares war on a non-state entity, e.g. ISIS, where would deployment of armed forces be okay? There is no designated region or nation-state of ISIS.
RSW: Actually, ISIS does have a geographic location known as the caliphate, but that is not really the point of your question. Once the congress declares war, the president, as commander in chief, is free to wage war within the limits of US law and international conventions. The matter of whether or not the locations of deployment are justified is one of public opinion, and if the opinion of the people is that the location is unjustified, then the remedy of impeachment exists.
DK: “All military personnel deployed at the time of this amendment’s passage must return to the United States mainland before the next presidential election unless a state of declared war exists at that time.” Wouldn’t this encourage Congress towards a state of declared war, if simply to avoid bringing all military personnel back home?
RSW: Perhaps, but again, congress does not declare war lightly, which is why they haven’t done so since 1942. Even if they did, declared war is better than undeclared war if only for purposes of debate and accountability.
DK: I would expect to see an escalation of aggression with US-foreign policy prior to the passage of the amendment if this was the desired case.
I disagree, though I don’t simply dismiss the idea that I may be wrong. I believe that it’d be hard to be more aggressive than we are right now unless we started a new invasion, and I believe that American’s are weary of war and wouldn’t stand for it. I also believe that any serious attempt to pass this amendment would require a large effort to get word out to the public in order to ensure a debate and vote in the national congress, and then a debate and vote within each state congress to ratify. I find it difficult to believe that the state could continue its current level of aggression while this national debate on war power was underway.