Why is it never mentioned that it is the job of Congress to declare war?

[nytemare]

It is supposed to be the job of Congress to declare war. I may need to do more research, but as far as I remember, at no time in history has the President gone to Congress to get a resolution so HE could make that decision.

Congress gave HIM the power to go to war if weapons inspections did not work. So, Bush would order bombings to agitate Hussein into being testy with the inspectors. Bush decided to go to war, not Congress.

Bush got that authority through a resolution, for the first time in our history. At no time again should Congress give up their authority to declare war. Bush didn't trust the Congress to declare war on them with all the intelligence. That question should be asked! If the case was good to go to war, why did Bush take it upon himself, as one person, to do the job of Congress? He took away that check and balance.

For some reason, everyone just seems to go on like this procedure was commonplace. Nothing to it.

:shrug:

[The Velveteen Ocelot]

1. I wonder whether Congress acted unconstitutionally

(not to mention stupidly) when it delegated the authority to go to war to the President. Leaving aside the question of whether anyone with half a brain would delegate the authority to take out the garbage to a dumbass like Bush, I have to wonder whether the Congress is just as responsible for pissing on the Constitution as he is?

[HereSince1628]

2. Undeclared wars are way more common in US history than

declared wars. By a factor of 3 or 4 to 1.

The Founder's rightly knew that Congress would be reserved about declaring war. I'm just not sure they ever expected Congress to be so weak-kneed that they would routinely hand off war powers.

[Yupster]

17. Hard to make too much of a stink when

the precedent has been so clearly established our entire history.

Bush went to Congress for a resolution. That's more than Clinton did with the Balkans.

[William769]

3. F.D.R. n/t

[nytemare]

9. Yes, but he asked congress themselves to declare war.

Not for Congress to give him that decision at a later date.

Wish we had an FDR now.

[misternormal]

4. Congress granted Bush the power...

Under the War Powers Act...

http://www.cs.indiana.edu/statecraft/warpow.html

http://www.monad.com/sdg/Journal/warpowers.html

[nytemare]

10. Thanks for the links!

The second was particularly interesting.

:)

[Samantha]

19. Yes, thanks for the link but that War Powers resolution is a public law

In response to the thread's main question, I think it is unconstitutional. I did write about this several times before the preemptive attack and no one ever answered the questions I posed. I do not see how a public law supersedes the Constitution, which is the supreme law of the land. I don't think Congress does have the authority to delegate the right to declare a pre-emptive war to the administrative branch. This is a bunch of hooey, even though it has been repeatedly done.

The Constitution is clear. The administrative branch can summon the military to react (without delaying to have Congress gather to address the response to an attack) and to act as the Commander-in-Chief in such situations. Iraq did not attack us. In those cases, it is clearly the Constitutional responsibility of the Congress to declare a war. Passing a public law to the contrary does not amend the Constitution.

I think this was a charade because what Bush* asked for was immunity from impeachment if he attacked Iraq (and the signatories gave it to him) -- they simply called it something else in order to not level with the American public as to what was going down.

It is disgusting. This Bush* cabal repeatedly refers to itself as being of the strict constructionist cloth but nothing could be farther from the truth. Bush* had no Constitutional authority to launch a pre-emptive attack on a country which did not attack us, and that's the literal truth, despite whatever resolutions were presented to the American public with Senators' signatures.

People can point, as I am sure they will, to all the precedents of this act, but in order to alter the Constitution, one must amend it, and a resolution does not do that, does it?

[crikkett]

5. silly, there's no war in Iraq

"Major Combat Operations are over"

[Beelzebud]

7. War is peace!

Freedom is slavery!

Ignorance is Strength!


Those used to be quotes from 1984. Now I think it's the GOP party slogan!

[nytemare]

8. LOL.

Yes, we are only now in "minor combat operations".

:)

[leftofthedial]

6. because ever since the empirical presidency of Nixon

congress has traded (individual) money for (collective) power

[adwon]

11. Incorrect

Resolutions allowing the president to use force have been used, if I remember correctly, more often than a general declaration of war. The most recent time before IWR was in 1991 with Desert Storm.

This is a perfectly legitimate and constitutional means of exercising the power to make war. Just because numbnuts screwed with it doesn't make it invalid.

[DrDebug]

12. Not according to Dick Durbin

Copied in full since it's in the public domain

CONGRESSIONAL WAR AUTHORIZATION POWERS

The Constitution could not be clearer on Congress’ role deciding whether this nation goes to war. Article I, section 8, clause 11 of the Constitution confers on Congress alone – the House of Representatives and the Senate – the power to declare war.

The 1973 War Powers Resolution was an effort to carry out the intent of our Constitution to require Congress, and the American people through them, to enter into a debate before we send our sons and daughters off to fight, perhaps to die, for their country. However, Presidents of both parties have tended to ignore their responsibility to gain Congressional authorization before sending American troops into offensive combat – and Congress has too often been content to duck its Constitutional role.

Senator Durbin believes that the Constitutional balance between the Executive and Legislative branches must be restored.

Article I, Section 8, Clause 11 of the Constitution, the so-called “war powers clause,” vests in Congress the power “to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.” Clause 18 of this section gives Congress the power to “make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” This clause clearly states that it is Congress that makes the laws for the regulation of the Armed Forces, especially in matters of war.

Article II, Section 2 of the Constitution states that “The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States” -- the only war powers vested in the President by the Constitution.

The courts have also upheld the implied constitutional power to “authorize” war: Most recently, the U.S. District Court in Washington, D.C., writing in the 1990 case of Dellums v. Bush, “If the Executive had the sole power to determine that any particular offensive military operation, no matter how vast, does not constitute war-making but only an offensive military attack, the congressional power to declare war will be at the mercy of a semantic decision by the Executive. Such an ‘interpretation’ would evade the plain language of the Constitution, and it cannot stand.”

During the Cold War, Congress essentially ceded its constitutional war powers responsibilities to the President. Many of the significant instances of use of force by the Executive without Congressional authorization - including the only major unauthorized war, Korea, and localized conflicts in the Dominican Republic, Grenada and Panama, among others - occurred during this period.

The 1973 War Powers Resolution unfortunately has done little to slow the gradual assumption of war powers claimed by successive administrations, or to embolden Congress to properly exercise its war powers responsibilities under the Constitution.

Even in signing the congressional authorization of the use of force against Iraq in 1991, President Bush was at pains to emphasize his claim that he possessed the constitutional authority to act without it: “As I made clear to congressional leaders at the outset, my request for congressional support did not, and my signing of this resolution does not, constitute any change in the longstanding positions of the Executive Branch on either the President’s constitutional authority to use the Armed Forces to defend vital U.S. interests or the constitutionality of the War Powers Resolution.

The Clinton Administration has echoed President Bush’s comments and even taken them one step further. In a Statement of Administration policy threatening a veto of the House Defense Appropriations bill if a similar amendment by Rep. David E. Skaggs were included, the Administration stated that “The President must be able to act decisively to protect U.S. national security and foreign policy interests.”

Senator Durbin does not believe the framers of our Constitution would ever have accepted such inflated claims of Executive authority, or the idea that the Armed Forces should be used by the President as a device for implementing administration foreign policy without the approval of Congress.

http://durbin.senate.gov/issues/warauth.cfm

[adwon]

14. He's entitled to his opinion

Nonetheless, he is wrong. From the Mexican-American War to the present, conditional declarations, such as enabling resolutions, have been deemed constitutional by the two branches fit to determine their validity: the executive and the legislature. The courts have no place in determining the ins and outs of war powers, as those powers are inherently political and not legal, as shown by the fact that he can only cite a district court case and nothing higher.

At the end of the day, if the president and congress agree on the validity of an enabling resolution, that is all that matters. And, as those are the branches with anything resembling political accountability, that is as it should be.

[DrDebug]

15. I think he is absolutely right

Because it isn't a matter that the principle has been violated before. The bottom line is that according to the Constitution the president has no right to declare war. The only party able to do that is the Congress.

If you look at it from a legal perspective enabling resolutions don't mean anything. It'll still need Congress to make it effective and that's the part which hasn't happened. BTW: Most wars aren't wars. They tend to have names like police action and that was done for that reason.

[adwon]

18. No

First, two unconstitutional wars have been fought in American history. Korea and Kosovo. In both cases, the president claimed he had no need for congressional authorization. The constitution demands congressional authorization, but it does not specify how that authorization is to be given.

Second, war powers are political, NOT legal. They fall under the political question doctrine. Congress gives the authorization in the enabling resolution, such as Tonkin Gulf or IWR.

If there's combat, it's a war. Police action, counterinsurgency, just different names for the same thing. The word war doesn't just mean situations like WW2 or the Civil War. I would say the initial occupation of the Phillippines counted as a war, what with 250k Filipinos dead.

[Samantha]

22. Yes he is absolutely correct and so are you

The War Powers Act does not amend the Constitution. That takes a literal amendment. The POTUS can react to defend this Country when attacked; the POTUS cannot summon the military for a war in circumstances other than that. It very clearly distinguished in the Constitution the roles each of these branches play. What the signatories to the resolution on Iraq said was, go ahead, invade Iraq, we won't impeach you -- and they put their John Hancocks on a piece of paper guaranteeing exactly that to Bush*.

There is a huge difference between having the Constitutional authority to declare a war and playing the political angles of declaring a war. And that's what these debates fail to differentiate -- the literal difference between having the authority and the willingness to play the politics of doing so.

[Samantha]

21. The fact it has been repeatedly done does not make it Constitutional

It just makes it a fact.

The Constitution intended for the POTUS to launch a war only in response to an attack. It intended Congress to declare wars not in response to attacks. Public laws (or resolutions) or even Federal laws do not amend the Constitution. That's it in a nutshell.

[oasis]

13. Before the war became a fiasco, the press acknowledged it as "Bush's war".

Now that it's coming apart at the seams, the press wants the Dems to share in the blame.

[spanone]

16. To get around that, we just never 'declare' war.

[mondo joe]

20. Congress DID authorize the war by giving Bush the power to make the call.

And I would say their blank check reflects an abandonment of their responsibility on an ethical, though not legal, level.

[Samantha]

23. So where's the official declaration of war

[mondo joe]

24. They don't need to declare it.

They authorized the military engagement. That makes it as much a "war" as Viet Nam, Desert Storm and other military engagements.

[Samantha]

25. Article I, Section 8 of the Constitution

"To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

Foregoing powers enumerated includes:

"To declare war, grant letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water."

I do not see how it is possible to "make a law" without putting it in writing.

Please note the use of the literal word "declare" in this passage. The Constitution specifically says the Congress shall "declare" war.

[mondo joe]

26. Fine - it's not a war. It's a "military action".

Does that work for you?

[Samantha]

27. Here's the problem

(and I am not trying to make you angry) ... I was a strict constructionist before the Republicans found this term recently and started tossing it around in connection with Supreme Court nominations. I really resent the use of this term to negate the supremacy of the Constitution. And that's exactly how the GOP is trying to define itself in the eyes of the American public -- as strict constructionists.

But if one truly reads this document and finds both the authorities granted to, and limitations imposed upon, each branch of the government by the Supreme Law of the Land, it takes a lot of arrogance to, for instance, do an end run around what each branch has the authority to do, for instance, declare a war, turn the page and in another context, define oneself as a strict constructionist. That is my point. Can you understand why I think it is important for the American people to hold the Congress' feet to the fire in performance of its duty as defined by this document and not sit still when the GOP totally distorts the checks and balance intent inherent in this document?

[mondo joe]

28. You're not making me angry. But I don't think ignoring the practical

reality helps anything.

I understand why you think it's important. And it's not that it isn't - but there are some things that are practical realities and are not going to change.

[Karenina]

29. He also pulled security clearances

denying 92 information.