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Friday, Aug. 30, 2002

Republicans are debating among themselves whether President Bush should go to war against Iraqi President Saddam Hussein. Is a unilateral pre-emptive strike called for to prevent Hussein from getting nuclear weapons? Would such an attack destabilize the region and send oil prices soaring? Do we need - or want - allies involved?

Nonetheless, The New York Times reports that the President may, when he returns from his vacation, seek support from Congress. And the Senate Armed Services Committee has announced that it is going to hold hearings on a war in Iraq when the August recess ends. Now that Vice President Cheney, and Secretary of Defense Rumsfeld, have laid out the basics of the administration's case for a pre-emptive war against Saddam, they want to examine it.

It strikes me (as a long-time registered Independent) that the Democrats are right to insist that President Bush submit the question of going to war with Iraq to the Congress. It would be good for Democrats, good for Congress, and good for the nation. Moreover, it could clarify the fuzzy standards that have become the law of the land when it comes to Presidential power to declare and conduct war.

Never has there been a more appropriate moment to re-examine the President's war powers. We should deliberate and decide to go (or not to go) to war, as our Constitution contemplates, and not merely start marching, as the chest-pounders in the Executive Branch advocate.

The Decision to Go To War Is Exclusively That of Congress

Sadly, it seems we've reached the point where the Constitution is no longer relevant on matters of a president's war-making powers. Presidents, the Congress and the Courts have made going to war, once a serious Constitutional issue, a purely political question.

As a result, in the last half century, the war powers clause of the Constitution has become a nullity, if not a quaint relic. While conservatives often insist on following the letter of the Constitution on most issues, on matters of war they ignore it.

That's a disgrace, because the Framers of the Constitution carefully laid out the decision-making process for war. Pursuant to the document, war is a decision to be made exclusively by the representatives of the people - the Congress. Only Congress is authorized to declare war, raise and support armies, provide and maintain a navy, and make the rules for these armed forces. There is nothing vague or unclear about the language in Article I, S 8, clauses 11-16.

Our History of Congress's Declaring War

On five occasions, Congress has, indeed, declared war, just as the Constitution contemplates: with England in 1812, Mexico in 1846, and in Spain in 1898, and in World War I and World War II. In each instance, Congress did so at the request of the President.

From 1789 until 1950, presidents repeatedly engaged the nation in military hostilities through unilateral exercise of their powers as commander-in-chief. Yet when doing so they always sought congressional authority, even if after the fact.

An often-cited example of the practice of unilateral Presidential warmaking is President Lincoln's commencement of the Civil War while Congress was in recess. Yet what is less frequently noted is that he sought ratification of his action when Congress returned.

Truman's Historic Korean War Decision to Decline to Seek A Declaration

During the protracted Cold War, with its recurring cycles of national tension, the extra-constitutional practice of fighting war without any Congressional declaration of war emerged. It was a decision by President Harry Truman that led the way for his successors.

In 1950, North Korea invaded South Korea. President Truman, biographer David McCulloch reports, recalled his roving European ambassador Averell Harriman, making him a special assistant at the White House to stay on top of the developing crisis in Korea. As the North Korean aggression increased, Harriman recommended that the President go to Congress for a declaration of war against North Korea. Secretary of State Acheson disagreed.

Acheson - an eminent lawyer, and former law clerk to Justice Brandeis - must have been well-aware of the Constitutional issue, but thought the President would only have trouble with Congress if he sought a declaration, and that would it more difficult to deal with the growing Korean emergency. Acheson wanted Truman to go to the United Nations instead, which at that time was only five years in existence and had never authorized an armed peace keeping mission.

McCulloch reports, "Truman sided with Acheson, telling Harriman further that to appeal to Congress now would make it more difficult for future presidents to deal with emergencies." The United Nations authorized the armed effort, confirming the wisdom of Acheson's approach. Then, without Congressional approval, Truman - acting on Acheson's legal advice - committed American military forces to implementing the UN's resolution.

Historian Arthur Schlesinger, Jr. reports in The Imperial Presidency that "the State Department churned out a memorandum listing 87 instances ... in which presidents had sent American forces into combat on their own initiative. Truman, impressed by the appearance of precedent and concerned not to squander the power of his office, accepted his Secretary of State's recommendation." Initially, Congress simply acquiesced.

The First "Great Debate" Over War Powers

When the Korean War started going badly, and Truman needed significantly more troops, New York Congressman Frederic R. Courdert, Jr. (R. NY) introduced a sense-of- the-Congress resolution challenging the president's authority to conduct this unauthorized war. When Courdert was joined by Senator Robert Taft (R. OH), who was anxious to protect Congressional power, it became know as "the great debate," Schlesinger reports (and he was a participant at the time).

Schlesinger, along with historian Henry Steele Commager, was among the scholars who rallied to Truman's support. Schlesinger writes that he and Commager had learned most of what they knew about presidential powers from Harvard professor Edwin S. Corwin. Thus, they were "astonished when Corwin denounced them [Schlesinger, Commager and the others]." But years later, Schlesinger appreciated Corwin's position, agreeing that his former professor was correct in calling for something like the Courdert-Taft resolution.

Constitutional authority for Truman's position was non-existent. Truman, when asked at a press conference, for his authority in committing troops without Congressional approval, responded that his power had been "repeatedly recognized by the Congress and court." When pressed for a court decision, he snapped, "I haven't got it with me just now, but you will find decisions by at least three Chief Justices on that very subject." He never did produce these decisions.

Senator Wayne Morse (D. OR) tried to come to Truman's defense. He introduced the full text of the U.S. Supreme Court's holding in U.S. v. Curtiss-Wright, but it takes a tortured reading of this ruling to come even close to finding unilateral authority for the president to send troops to war without Congressional approval.

The "great debate" ended with a compromise. Congress gave Truman his troops but said there would be no more, anywhere, "without further Congressional approval." Dean Acheson smiled, and assured the President that a sense-of-Congress resolution was not law binding on the president.

Nonetheless, Truman had set a precedent and norm for later presidents.

The Last Great Debate Over Presidential War Powers

Truman's decision became the precedent for the unpopular Vietnam War (1961-1975). By 1973, the war-weary Congress challenged the President's war powers, concerned it had lost all power over the unending war in Vietnam, by introducing a sweeping War Powers Resolution

This resolution, designed to "insure that the collective judgment of both the Congress and the President" are involved in decisions to use American military forces, acknowledges that a President can start a war without Congress - so long as he advises Congress he is doing so. Then, if Congress does not either declare war or otherwise authorize the use of the military within 60 days from the start of the hostilities, the President must terminate such use of the military.

The War Powers Resolution, moreover, seemed to have pleased no one. Liberals, for example, criticized the resolution for permitting the president to unilaterally initiate hostilities for 60 days, before Congress can exercise its constitutional powers.

Meanwhile, conservative critics found that the resolution impinges on what they believe are the "inherent powers" of the president (powers largely established by past practice, or some very fancy constitutional interpretations), and thus violates the doctrine of separation of powers by shifting power that properly belongs to the executive, to the legislature instead.

In the almost 30 years since Congress adopted the War Powers Resolution, Presidents have regularly employed our Armed Forces in hostilities without consulting with Congress. How do they do it? They issue a report "consistent with" the resolution rather than "pursuant to" it, and claim that whatever actions they have so far taken have not triggered the 60 day grace period. They maintain, in short, that a war is not a war in order to bypass the statute.

While Presidents acknowledge the War Powers Resolution's existence, none have conceded its constitutionality - because to concede it would be to limit their own power and increase that of Congress. And the federal judiciary has avoided becoming part of this political struggle between its co-equal branches - leaving Presidents to do what they like, without having to appear before any court other than that of public opinion to justify their actions.

Congress Cannot Count On The Courts To Protect Its Warmaking Power

Following the Truman precedent, the early phases of the Persian Gulf War (1990), and the war in Kosovo (1999) were undeclared wars, occurring without Congressional authorization. Both wars convinced members of Congress to turn to the courts to force the president to comply with the Constitution, but to no avail.

In August 1990, Iraq invaded Kuwait. President George H.W. Bush responded by sending American troops, without a Congressional declaration of war. As the President talked of escalating the battle, Congressman Ron Dellums, along with several colleagues, filed a lawsuit to enjoin the president from widening the war without a declaration of war by Congress.

But the judge that heard Dellums v. Bush, Judge Harold Greene of the Federal District Court for the District of Columbia, refused to become involved. He followed the 1979 U.S. Supreme Court ruling in Goldwater v. Carter - in which the Senator sued the President for breaking a treaty with Taiwan, and the Court held that the case was not "ripe" for review, meaning that the suit has been brought at the wrong time.

Similarly, Judge Greene held the issue in Dellums v. Bush was not ripe either, and would not be unless all of Congress, and not just Dellums, was clashing with Bush. The judge ruled that:

Shortly thereafter, the Congress authorized "Operation Desert Storm" and mooted the issue of whether, if a constitutional impasse had indeed been reached, judicial intervention would have been appropriate. Arguably the subsequent Congressional action shows the wisdom of Judge Greene's decision not to intervene- for in the end, there was no conflict between Congress and the President to resolve.

More recently, Congressman Tom Campbell, and a group of colleagues, again turned to Federal Court after it became clear that President Clinton was going to fight the war in former Yugoslavia in 1999 without a declaration of war. (Clinton was at the time perceived as a relatively "weak" president - for he was simultaneously embroiled with the Congressional effort to impeach him over the Monica Lewinsky affair - and Campbell and his colleagues may have thought that, for this reason, they could win a battle).

Campbell had previously forced votes in the House of Representatives under the War Powers Resolution denying Clinton authority to continue the air strikes. When the 60-day period under the War Powers Resolution expired, and the air strikes continued, he went to court.

Both the U.S. District Court and the U.S. Court of Appeals for the District of Columbia rejected the case. They found that the members of Congress had no standing, basically for the same reason stated in Dellums - no interbranch impasse had been reached. Congressman Campbell then sought U.S. Supreme Court review, but was turned down.

Scholars agree that Campbell v. Clinton largely ended all hope of using the federal courts to hold the president accountable under the Constitutional requirement that Congress must declare or authorize war before a president can engage in war. The federal judiciary is not inclined, for good reason, to enter this political thicket.

This is not to say, however, that Congress is without remedy when a President acts without seeking its authorization or approval.

Congress Can Control A War with Iraq by Controlling the Purse Strings

I don't doubt that a technical legal argument can be made that George W. Bush does have authority for the current war, under the Operation Dessert Storm resolution that his father obtained from Congress.

But that argument would be technical indeed. After all, that earlier Congress certainly did not believe it was authorizing the present war the younger Bush is planning. It is a different time, a different President, and very different circumstances - with the war on terrorism, the volatile Mid-East situation, and the increased weapons of mass destruction threat, which cuts both ways.

If (hypothetically) no one in Congress, once hearings are held, is persuaded that war with Iraq is necessary or appropriate; if Republicans remain divided and our allies remain horrified; if only the chest-pounding hawks surrounding the President want war; and if, nevertheless, the President says he is going to go forward with the war, Congress will still be in control.

Congress can always pull the purse strings. Wars demand a great deal of money, and the president can't reach into the U.S. Treasury without an authorization and appropriation. To spend money, he needs Congress's approval.

An excellent monograph, entitled "Pulling the Commander In Chief's Purse Strings," explains such use of purse power. The authors, William C. Banks & Peter Raven-Hansen, note that this was how the Vietnam war ended. It wasn't pretty:

Eventually, Congress adopted Senator Thomas Eagleton's amendment... which provided that "none of the funds herein appropriated under this act or heretofore appropriated under any other act may be expended to support directly or indirectly combat activities in, over or from off the shores of Cambodia or in or over Laos by United States forces." Although this first end-the-war effort was successfully vetoed by the President [Nixon] on June 27, on June 29 Congress approved and the embattled President signed the Second Supplemental Appropriations Act, which required an end to all U.S. "combat activities" in Southeast Asia by August 15. The June 29 measure was a compromise: the restriction was broadened to include all of Southeast Asia, but was put off to give the President forty-five more bombing days....

Upon the withdrawal of U.S. forces from Southeast Asia, the U.S.-supported governments in the region rapidly collapsed. Operating under the strict limits of the end-the-war amendments, President Ford authorized limited use of U.S. military force in the final evacuations of Cambodia and South Vietnam in 1975.

In short, there is only one sure way Congress can stop President Bush from going to war with Saddam: cut off his funds. Without money there can be no war.

But this would be doing indirectly what Congress should do directly - either declare war, or not. And if Congress does not, and the President proceeds anyway, the President should be taken to task for ignoring the Constitution.

John W. Dean, a FindLaw columnist, is a former counsel to the President.

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