Power to Declare War

Source:  USA Today

War powers rest with Congress

The Constitution gives a clear vision of the Founders’ intentions. If only Congress hadn’t ceded its authority to a war-bound president.

By Mario M. Cuomo

“The Congress shall have power … to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.”

Article 1, Section 8, Paragraph 11 of the U.S. Constitution

If Congress had paid closer attention to our Constitution when dealing with Iraq, the nation would be much better off than we are today. The frustrating political paralysis that prevents us from pulling our forces out of harm’s way in Iraq might have been avoided in 2002 when President Bush first made clear his desire to declare war.

Congress could have — and should have — immediately insisted that by virtue of the unmistakably clear language of our Constitution, the power to declare war resides in the Congress and not the presidency. It was our Founding Fathers’ wise rationale that something as significant as war should not be determined by one individual but by many, deliberating the issue in Congress.

This remains true, although since World War II timid Congresses and eager presidents have ignored the Constitution several times, occasionally even explicitly handing over their authority to the president, as it did in the case of the Iraq war. That unfortunate trend relegated the issue of war from a constitutional one to a political one, and today we are paying the price for that lapse.

Had Congress accepted in 2002 the responsibility imposed upon it by the Founding Fathers and conducted its own deliberations instead of ceding authority to Bush and depending heavily on the president’s “proof,” including the 2003 testimony of then-secretary of State Colin Powell before the United Nations, it might have concluded that the war was not necessary. Now, however, it is virtually impossible for it to end by legislation.

Because Congress deferred to the president, no matter what bills Congress is able to pass with respect to funding or otherwise, the president would reject the legislation and continue to claim it is his right as commander in chief to run the war and Congress’ duty to sign the checks.

That would create a constitutional issue that could be resolved by the U.S. Supreme Court. Unfortunately, the justices are very reluctant to intervene in any dispute between Congress and the president over war powers, particularly when Congress has made the mistake of authorizing it. In fact, a wartime delegation of power has never been held unconstitutional.

Two federal courts have already held that the judiciary should not intervene in the ongoing dispute over the war in Iraq, in cases brought by a number of individuals, including members of the current Congress.

The courts’ opinions make clear there is no likelihood that the Supreme Court, which is even more distinctly conservative than the court that made George W. Bush president in Bush v. Gore, would make history by being the first to intervene in such a disagreement.

As a result — like it or not — the only way to extricate ourselves from the Iraq debacle is for the president and Congress to agree on a new strategy. To achieve that, the Democratic congressional leadership and GOP stalwarts such as Sens. Richard Lugar and John Warner should forge a bipartisan strategy that would remove our troops in Iraq from their roles as targets, in stages, replacing the military option with political and economic options, and doing it as soon as possible.

Six months ago, it would have seemed foolish to expect any bipartisan effort, or any agreement between Congress and the president, but today it appears that over the next several months that will be plausible. It’s hard to believe that in September the surge will prove to be achieving what more than four years and more than 150,000 troops have failed to accomplish.

Aware of that, more Republicans are joining Democrats in pushing for a change in tactics, in part because the war’s unpopularity continues to diminish Republican prospects for regaining control of Congress or keeping the number of seats they currently hold.

That reality puts more pressure on Bush to change course on Iraq. Because it’s possible that unless Bush changes direction, he will be memorialized as the Republican president who brought the GOP to the lowest level of prestige and power in its modern history. That, added to the other pathetically failed efforts that will be part of his legacy, might be the straw that breaks the back of his painful obstinacy.

As long as Bush is intent on rejecting whatever legislation is passed, and the Supreme Court will not intervene, there is no better alternative.

The tragedy of Iraq might have been avoided by simply complying with the clear language of the Constitution. We should keep that in mind every time we hear another warmonger whisper that we should start getting tougher with Iran.

Mario M. Cuomo, former three-term governor of New York, practices law with the international firm of Willkie Farr & Gallagher LLP.

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