The most agonizing decision we make as a nation is whether to go to war. Our Constitution ambiguously divides war powers between the president (who is the commander in chief) and Congress (which has the power of the purse and the power to declare war). The Founders hoped that the executive and legislative branches would work together, but in practice the two branches don't always consult. And even when they do, they often dispute their respective powers.

A bipartisan group that we led, the National War Powers Commission, has unanimously concluded after a year of study that the law purporting to govern the decision to engage in war -- the 1973 War Powers Resolution -- should be replaced by a new law that would, except for emergencies, require the president and congressional leaders to discuss the matter before going to war.

Congress passed the 1973 resolution in response to the Vietnam War. But it is ineffective at best and unconstitutional at worst. No president has recognized its constitutionality, and Congress has never pressed the issue. Nor has the Supreme Court ever ruled on its constitutionality. In fact, courts have largely shied away from refereeing war-powers disputes between the two political branches.

Most legal experts, however, interpret a 1983 Supreme Court decision on Congress' authority to overrule the president to mean that parts of the statute are unconstitutional. Its provision saying that Congress may require the president to remove troops from combat merely by passing a concurrent resolution cannot survive the constitutional requirement that a measure must be presented to the president for signature or veto if it is to have the force of law.

The statute has other problems as well: It too narrowly defines the president's war powers to exclude the power to respond to sudden attacks on Americans abroad; it empowers Congress to terminate an armed conflict by simply doing nothing; and it fails to identify which of the 535 members of Congress the president should consult before going to war.

As a consequence, the 1973 statute has been regularly ignored -- a situation that undermines the rule of law, the centerpiece of American democracy.

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MANY HAVE SUGGESTED THAT THE WAR POWERS RESOLUTION be amended or replaced altogether. But proposals to do so haven't gotten very far, typically because most have sided too heavily with either the president or Congress.

Our proposed new law, the War Powers Consultation Act of 2009, does not pretend to resolve the underlying constitutional issues -- only a constitutional amendment or a Supreme Court decision could do that. It would reserve the ability of both Congress and the president to assert their constitutional war powers. In drawing up the statute we focused on a common theme that almost all past proposals shared: the importance of meaningful consultation between the president and Congress before the nation is committed to war.

Our proposed statute would provide that the president must consult with Congress before ordering a "significant armed conflict" -- defined as combat operations that last or are expected to last more than a week.

To provide more clarity than the 1973 War Powers Resolution, our statute also defines what types of hostilities would not be considered significant armed conflicts -- for example, training exercises, covert operations or missions to protect and rescue Americans abroad. If secrecy or other circumstances precluded prior consultation, then consultation -- not just notification -- would need to be undertaken within three days.

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