The Road to Iraq

Does President Bush have the constitutional authority to commit the country to war?

In planning war against Iraq, advisers to President George W. Bush have concluded that he has the authority to launch military operations without seeking congressional approval. With all due respect to the White House's legal analysis, current statutes and constitutional provisions confer no such authority.

Supporters of the administration's position look to the president's constitutional role as commander in chief and to three statutes -- the War Powers Resolution of 1973, the Iraq Resolution of 1991, and the Use of Force Act of 2001. But the commander-in-chief clause provides no sanction for presidential wars. And the three laws need to be interpreted and implemented in ways that keep faith with the Constitution. At least as of this date, the Constitution still trumps a statute.

In short, to satisfy the Constitution and the core values of our democratic republic, Congress must specifically authorize any significant military action against Iraq.

If the framers of the Constitution had wanted to give the president unilateral power to take the country to war, they would have borrowed wholesale from the British monarchical system described in Sir William Blackstone's Commentaries. Blackstone placed all foreign affairs and war powers in the executive: i.e., the powers to make war, send and receive ambassadors, make treaties, issue letters of marque and reprisal, and raise and regulate fleets and armies. The framers studied that model carefully and rejected it in full. Not a single one of Blackstone's prerogatives over external affairs was assigned solely to the executive. Instead, these powers were given exclusively to Congress or were shared between the Senate and the president.

The framers jettisoned Blackstone's model because they were creating a republic: a government that derives its power from the people and where the primary power rests with the legislature. Writing in The Federalist No. 39, James Madison explained why only a republic satisfied the spirit of the American Revolution: "[N]o other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government."

A republican form of government meant placing the power to initiate war in Congress. At the Pennsylvania ratifying convention, James Wilson assured his colleagues that such a system "will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large."

The framers made the president the commander in chief to avoid fragmented direction of military operations and to assure civilian supremacy over the military. But the president received only defensive powers "to repel sudden attacks," especially when Congress was not in session.

That point has long been understood by the judiciary. In Talbot v. Seeman (1801), Chief Justice John Marshall noted: "The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this inquiry." In Little v. Barreme (1804), Marshall ruled that the war policy adopted by Congress in a statute prevailed over a conflicting war policy announced by President John Adams in a proclamation.

In The Prize Cases (1863), the Supreme Court carefully restricted the president's power to defensive actions, noting that he "has no power to initiate or declare a war either against a foreign nation or a domestic State." The executive branch took exactly the same position: During oral argument, the attorney representing President Abraham Lincoln stated that the president's actions in question had nothing to do with "the right to initiate a war, as a voluntary act of sovereignty. That is vested only in Congress."

From 1789 to the present time, Congress either declared war or passed authorizing statutes for all major wars, with just two exceptions: President Harry Truman's sending troops to Korea in 1950, and President Bill Clinton's initiating military action against Yugoslavia in 1999. But Truman's and Clinton's exercises of power were not the same as an exercise of constitutional authority. Truman and Clinton lacked the authority to do what they did. They conducted unconstitutional wars -- and illegal actions do not change the Constitution, either expressly or by implication.

The idea of keeping the power to commit the country to war -- and to all the costs of war -- in separate hands from the power to wage war once declared was a bedrock principle for the framers. The rise of democratic government is directly related to legislative control over all expenditures, including those for foreign and military affairs. Madison explained: "Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded." Thomas Jefferson praised the transfer of the war power "from those who are to spend to those who are to pay."

What would be the financial costs of going to war against Iraq today? The Persian Gulf War in 1991 cost about $61 billion ($80 billion in current dollars), but most of those costs were covered by allied contributions to a war that lasted only 44 days. Few allies are likely to support an American war against Iraq this time, and military operations are likely to last longer. After a cease-fire, the United States would have to remain in Iraq for years to guide its political development and to prevent a possible takeover of the country by terrorists.

The conclusion has to be that war against Iraq could easily exceed $100 billion, with almost all of it paid by U.S. taxpayers. For a financial commitment of that size, taking place in the unstable Middle East with all its concomitant risks, the Constitution requires joint action by Congress and the president.

While the Constitution does not give the president alone the power to take the country to war, some argue that Congress itself has authorized such a presidential decision in several modern statutes -- the War Powers Resolution, the Iraq Resolution, and the Use of Force Act. But that would be an overbroad reading of all three laws.

The War Powers Resolution of 1973, which places a time limit of 60 to 90 days on presidential wars, says nothing about where a president may use military force. Therefore, presidential use of that statute to attack even Russia or China, as costly and destructive as that would surely be, might not conflict with some sections of the resolution.

It would, however, do violence to the values embodied in the Constitution: to check presidential war making, protect popular sovereignty, and ensure congressional participation in military adventures. Those core values would be debased by a broad -- even if, possibly, "legal" -- reading of the War Powers Resolution.

Some analysts also claim that President Bush has authority to introduce U.S. forces in Iraq under the Iraq Resolution of Jan. 14, 1991. That statute authorized military action to implement United Nations Security Council resolutions calling for Iraq's removal from Kuwait. Some argue that when Congress passed the statute, it also somehow sanctioned military operations authorized by future Security Council resolutions.

That position is not credible. It would mean that Congress had somehow shifted part of its war power to the Security Council. It would allow the United Nations Charter -- adopted by the president and the Senate pursuant to the treaty process -- to strip the House of Representatives of its constitutional authority over war.

There is no evidence that Congress intended, or could intend, such a result. It would critically undermine the framers' plan for popular control and self-government. Moreover, the objective of the 1991 statute was well-understood to be the ouster of Iraqi forces from Kuwait, not the overthrow of Saddam Hussein more than a decade after the fighting stopped.

What about very recent congressional efforts to give President Bush the ability to wage the "war on terrorism"? Legislation enacted on Sept. 18, 2001, authorizes the use of military force against the terrorists responsible for the World Trade Center and Pentagon attacks. The president may use "all necessary and appropriate force" against nations, organizations, or persons that "he determines" planned, authorized, committed, or aided the attacks or harbored those who did.

The Use of Force Act clearly contemplated imminent action against Afghanistan. On its face, the act also seems to permit the president to go to war against Iraq if he can demonstrate a link between Iraq and the Sept. 11 attacks. Yet this statute too must be interpreted without offending the Constitution. Even if a "link" is discovered, the use of major force many months later in the volatile Middle East for purposes of "regime change" raises questions of such magnitude -- militarily and financially -- that additional congressional authority is necessary.

It is not enough to parse a broadly worded statute to find "legal authority" if that reading does violence to the war powers balance struck by the Constitution. The Use of Force Act is phrased in such sweeping terms that it could be read to authorize wars to overthrow the governments of Egypt, Saudi Arabia, or, literally, any other country that the administration might someday "link" to Sept. 11. No one can argue that lawmakers had such momentous actions in mind when they passed the joint resolution, nor can it be argued that this interpretation of a hastily drafted statute would be faithful to constitutional text, the framers' intent, case law, custom, or democratic values.

So the laws on the books don't give President Bush the authority to take down Saddam Hussein without further congressional approval. But Bush's supporters point out that he has promised to consult with Congress before invading Iraq. Doesn't that solve the problem?

No doubt, policy making works better when the president consults with lawmakers, but consultation is not a substitute for receiving statutory authority. Just as it is unconstitutional for the president to withdraw funds from the Treasury without a congressional appropriation (no matter how nicely he consults), so is it unconstitutional for the president to take the country from a state of peace to a state of war without first obtaining authority from the lawmakers.

Congress is a legislative body that discharges its constitutional duties by passing statutes to authorize and define national policy. It exists to legislate and legitimate, particularly for military and financial commitments. Consultation remains an important technique for improving executive-legislative relations, and no doubt the country would benefit from further talks between President Bush and Congress over the fate of Saddam Hussein. But only congressional authorization of a war against Iraq will satisfy the Constitution.

Louis Fisher, senior specialist in separation of powers at the Congressional Research Service of the Library of Congress, is the author of Presidential War Power (University Press of Kansas, 1995) and American Constitutional Law (Carolina Academic Press, 2001).

"The Use of Force Act clearly contemplated imminent action against Afghanistan. On its face, the act also seems to permit the president to go to war against Iraq if he can demonstrate a link between Iraq and the Sept. 11 attacks. Yet this statute too must be interpreted without offending the Constitution. Even if a "link" is discovered, the use of major force many months later in the volatile Middle East for purposes of "regime change" raises questions of such magnitude -- militarily and financially -- that additional congressional authority is necessary.

It is not enough to parse a broadly worded statute to find "legal authority" if that reading does violence to the war powers balance struck by the Constitution. The Use of Force Act is phrased in such sweeping terms that it could be read to authorize wars to overthrow the governments of Egypt, Saudi Arabia, or, literally, any other country that the administration might someday "link" to Sept. 11. No one can argue that lawmakers had such momentous actions in mind when they passed the joint resolution, nor can it be argued that this interpretation of a hastily drafted statute would be faithful to constitutional text, the framers' intent, case law, custom, or democratic values."

This is typical lawyerese phrasing: "No one can argue..."
It falls into that great gray area known as BS!

I do argue that at the time the resolution was promulgated as a declaration of war because we were already "at war." Many suggested at the time a "true" declaration of war was required. Congress critters pooh-poohed that charge saying the joint resolution was more than enough and that it was loosely written expressly to allow Bush to act as he deemed necessary.

Wars do NOT typically end after a period of some months. ANY linkage of Iraq to terrorism (and there is no shortage of same) places it firmly in the same category as Afghanistan.

Can't have it both ways. If the Afghanistan attack was/is legal, so is the next one, and the one after that, and ....

In general, a good summary of the law- and of the administration's position, the Administration has claimed authority only under congressional authorization or the president's power to act in defense.

BUT...
"The Use of Force Act clearly contemplated imminent action against Afghanistan. "
No. Absolutely no.

The language and the debate over this bill clearly shows that it was NOT limited to Afghanistan.

One can argue that a full scale war with Iraq would not be "necessary and appropriate force" under that Act- OTOH actions less than a full scale war obviously would be authorized.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.