War Powers

November 20, 1990|By Jack Fruchtman Jr.

THE CURRENT DEBATE over whether the president should consult with Congress before beginning hostilities against Iraq is meaningless. The fact is that Congress will never again have another say about when America will go to war. Ever.

This is startling, but true, given Congress' historic abdication of its authority outlined in Article I, Section 8 of the Constitution: ''Congress shall have the power . . . To declare war.''

Of all the times America has gone to war over the course of its history, there have been very few moments when the president went before a joint session of Congress and requested a formal declaration of war. The last time that happened was nearly 50 years ago after the Japanese attack on the American Pacific fleet at Pearl Harbor when President Roosevelt in a speech which still rings in our ears (''A day that will live in infamy'') as a moment of unspeakable sadness and tragedy.

But the United States has been involved in at least two major wars since 1941 (Korea, Vietnam) and countless military interventions (in Latin America and the Middle East, mainly), all without a formal declaration of war. Each time, although there were complaints from congressional quarters, not one step was taken to obstruct military procurements, a move which would have certainly slowed, if not stopped, the war effort. This included last year's attack on Panama in an effort to topple the Noriega regime.

Only once, in 1973, did Congress try to clarify the difference between the authority of the president to be commander-in-chief and Congress' authority to declare war. Over the veto of President Nixon, it passed the War Powers Resolution, which every later president has called an unconstitutional infringement the president's authority to command the armed forces.

The resolution was designed to do two things. First, it requires the president to consult with Congress before introducing troops into hostilities or an area where hostilities may be imminent. This never happened during the current crisis. The president began sending troops to the Persian Gulf in August when Congress was on its summer recess.

Second, the president is required to report to congressional leaders within 48 hours of troop deployment the reasons for deploying troops into a region where there may be potentially hostile action. He then must withdraw those troops within 60 days unless the Congress has officially declared war, renews the 60 day period, or is unable to meet (as a result of the hostilities). American forces have been in Saudi Arabia for three months, growing at a steady pace. Congress has made no effort to authorize another 60-day period or to remove them. Congress wants, instead, the right to authorize the president to send these troops into combat should that be necessary.

In other words, congressional leaders are no longer demanding the right to declare war, as the Constitution prescribes, but only the right to say something before the president acts. There is nothing in this for President Bush in return.

Meantime, the War Powers Resolution is under attack in federal court by a National Guard sergeant who claims that the president has overstepped his constitutional authority to deploy troops to the Persian Gulf. This case, like so many before it, will go nowhere. The fact is that Congress' war-making power has become so enfeebled and atrophied from non-use that it is now non-existent. Nothing can revive it at this point.

Jack Fruchtman teaches politics at Towson State University.

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