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Undeclared war and the role of Congress

Charles Rice | Tuesday, February 20, 2007

Ready for a surprise? A member of Congress has introduced, on the Middle East, a bill embodying common sense and constitutional principle. No kidding. H.J. Res. 14, introduced by Congressman Walter B. Jones (R-NC), with two Republican and four Democratic co-sponsors, provides that no previously enacted law “shall be construed to authorize the use of military force by the United States against Iran.” The punch line is in the next section: “Absent a national emergency created by attack by Iran, or a demonstrably imminent attack by Iran, upon the United States, its territories or possessions or its armed forces, the President shall consult with Congress, and receive specific authorization pursuant to law from Congress, prior to initiating any use of military force against Iran.”

Substantial evidence supports a description of the Iraq war as a mistake in its inception and flawed in its execution. H.J. Res. 14 seeks to prevent a worse replay in Iran, by requiring that a new war must be initiated pursuant to constitutional process.

On Aug. 17, 1787, according to James Madison’s notes of the debates, the Constitutional Convention gave Congress the power to “declare” rather than to “make” war, “leaving to the Executive the power to repel sudden attacks.” “The Executive,” Roger Sherman said, “[should] be able to repel and not to commence war.” Elbridge Gerry said he “never expected to hear in a republic a motion to empower the Executive alone to declare war.” George Mason “was against giving the power of war to the Executive, because [he was] not safely to be trusted with it.”

The Constitution created, in Justice Robert Jackson’s words, “a zone of twilight,” with concurrent war powers in the President and Congress but no bright line of separation. Presidents have put forces into combat more than 200 times, all with explicit or implicit Congressional approval before or after the fact. As Alexander Hamilton noted even in 1787, “the ceremony of a formal denunciation of war has of late fallen into disuse.” Congress has declared war only five times. But it is still true that Congress should decide whether to go to war, with or without a formal declaration, and the President should conduct it.

The President is “Commander in Chief of the army and navy” because, as Hamilton said, “the direction of war … demands … exercise of power by a single hand.” Congress has no right to forbid the “surge” of more troops to Iraq or to cut off funds for that “surge.” Congress, however, has the power of appropriation and could cut off funds for continuation of the entire war, as was done in Cambodia and Vietnam. If the President vetoed a cut-off of funds, an override of that veto would require a two-thirds vote in the House and Senate. And impeachment of the President for his position on the war would require a two-thirds vote in the Senate to convict him. The President, incidentally, is “Commander in Chief of the army and navy,” not of the country.

An attack on Iran would be a new war rather merely an incident of the Iraq war. Opinions differ on whether a war against Iran would be justified and necessary. But Congress should make that call. In 2002 Congress gave the President authority to decide whether to go to war against Iraq “as he determines to be necessary and appropriate.” That sort of blank check should not be given again. The members of Congress should make the actual decision whether or not to go to war, and account for it to their constituents.

“Too many times,” said Congressman Jones, “Congress has abdicated its … duty. ….. [W]hile the Commander in Chief has the power to conduct wars -only Congress has the power to authorize war. …. [T]here is … concern … that Administration officials are contemplating military action against Iran. …. We understand the … threats posed by Iran …. The question is how best to address these threats …. If the President is contemplating committing our blood and treasure in another war – then he and his administration must come to Congress and make their case. The Congress answers to the American people …. It is our Constitutional responsibility … to hold hearings, … to evaluate the threats and to determine the best way to counter these threats. If military action against Iran is necessary, then we in Congress will meet our … responsibility and authorize it. If no military action is contemplated, then there should be no objection to this commonsense resolution.”

The military personnel of the United States are relatively few. But they are the very best among us. They have a moral and legal right to have military power used, and themselves put at risk, only through a decision made in accord with the Constitution and therefore made with proper authority. H.J. Res. 14 should be enacted to achieve that end.

Prof. Emeritus Rice is on the Law School faculty. He can be reached at (574) 633-4415 or at rice.1@nd.edu

The views expressed in this column are those of the author and not necessarily those of The Observer.