CAN PRESIDENT Bush take the country into war in the Persian Gulf without the approval of Congress? The question is heading toward decisive tests, legal and political. The answer could have profound consequences for our constitutional system and our internal peace.
The president has moved very far toward war without asking for the consent of Congress. After Iraq gobbled up Kuwait in August, he sent a large American armed force to Saudi Arabia. Three weeks ago he ordered that force almost doubled, to give it an offensive capability.
Now Bush has the authority of the United Nations Security Council to take military action. A long and skillful diplomatic campaign by the president and Secretary Baker ended in success last Thursday when the council authorized the use of "all necessary means" after Jan. 15 to enforce previous resolutions on the gulf.
But the president has undertaken only to "consult" Congress. That is very different from what the Constitution provides: that only Congress, the House and the Senate, shall have the power to declare war.
Legal conservatives have urged respect for the "original
intention" of the Constitution's framers. That is often difficult to discover, but in the case of the war clause the intention is exceptionally clear.
At the Constitutional Convention of 1787, delegates left it open to the president to use armed forces to repel sudden attacks. But a deliberate choice of war was to be for Congress. James Wilson of Pennsylvania, a key figure at the Convention, said: "It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large."
Presidents have used military force a great deal in recent years without any kind of approval from Congress. There were the swift strikes on Grenada and Panama.
But in this case there is no sudden reason for action. U.S. forces have been in the gulf for months. The U.N. Security Council has passed a dozen resolutions. Americans are openly debating the issue. For a president to make war without congressional authority under those conditions would be to plow the Constitution under.
The constitutional issues are raised in a lawsuit by 38 members of Congress, led by Rep. Ronald V. Dellums, D-Calif. It seeks a judicial decision that the president must have Congress' approval to go to war in the gulf. Their brief is a notable compendium of constitutional and legal materials on the issue.
Eleven distinguished law professors have filed a memorandum as friends of the court arguing that the president may not "order U.S. armed forces to make war" without "genuine approval by Congress."
The 11 professors cover all points of the legal spectrum. They include Erwin N. Griswold, former dean of the Harvard Law School, who was solicitor general in the Nixon administration. The breadth of representation shows how scholarly opinion has moved against unilateral presidential war-making.
The professors' memorandum says that Congress could give "affirmative authorization" for war in ways other than a declaration. But it says Congress must act formally, not through "legislative silence, stray remarks of individual members" or other things said to amount to "acquiescence" in executive acts. That was evidently a reference to executive claims of congressional "acquiescence" in the Vietnam War.
Political reality argues as compellingly as constitutional law for the president to go to Congress. Republican as well as Democratic leaders have said flatly that congressional authority is required for war.
Now that the U.N. Security Council has authorized the use of force, Bush may go to Congress on the momentum of that vote, presenting the members with something like a fait accompli. Will you stand in the way, he would ask, of a policy that the world has approved?
But Americans would be doing most of the fighting and dying in an attack on Iraq. And neither the Constitution nor the law passed when the United States joined the United Nations allows Congress to delegate its war-making responsibility to the Security Council.
The ultimate political reality is the growing American opposition to war now. It cannot be brushed aside when it includes the weighty voices of James Schlesinger and James Webb, Gen. David Jones and Adm. William Crowe. To rush to war in such circumstances would be to risk tearing this country apart.