Waging War Over Right To Delcare It


December 13, 1990|By TRB


CAN PRESIDENT George Bush launch a war against Iraq without the prior consent of the Congress? The administration says so. And sympathetic legal scholars are beavering away on theories to explain why the words, ''Congress shall have power . . . to declare war'' don't mean what they say.

This is the reduction ad absurdum of the conservative campaign give the president dictatorial powers to make foreign policy. The last decade has seen all sorts of foreign adventures: Grenada, Panama, the Nicaraguan contras, the Libya bombing, the sale of arms to Iran and the reflagging of the Kuwaiti tankers.

Each one came with a theory about how the Congress had no right to interfere. ''Micromanage'' was the general accusation. But ''micromanagement'' is not the issue now. If the president can make a deliberate, leisurely, unilateral decision to start a massive land war halfway around the world, then the constitutional provision about the Congress declaring war has become meaningless.

Those who usually campaign under the banners of ''strict construction'' and ''original intent'' flee this time from the plain meaning of words. First they snip away at the ''declare war'' clause until nothing is left. Then, with a gusto that would make any liberal activist proud, they build fantasy castles on the clause making the president ''commander-in-chief'' of the armed forces. A commander is an operational leader. A battalion commander can't decide alone to commit his soldiers to war. The words ''commander-in-chief'' don't confer that authority either -- especially when the authority is explicitly conferred on others.

The busy beavers have three arguments. One is that the authors of the Constitution explicitly rejected the words ''make war,'' rather than ''declare war.'' The standard reply is that this was meant to leave the president, in James Madison's words, ''the power to repel sudden attacks.'' The original intent game is usually a war of quotes. But the other side has no return fire for this one. It is about as clear as anything can be in constitutional interpretation that the framers did not intend to give the president carte blanche to start a war.

Second argument: Forget the framers. In real life, the U.S. has sent forces abroad some 200 times, while there have been only five declarations of war. What's one more time? One simple answer is that 196 wrongs don't make a right. But this ''200 wars'' statistic is one of those supposed facts that take on a life of their own. The list melts away when you start eliminating minor episodes with little or no actual fighting; rogue actions by distant officers authorized by neither the president nor the Congress; actions the Congress did approve, though not by a formal declaration, and so on.

No question the trend since World War II has been toward ever-broader assertions of presidential war-making power. But a trend is not a mandate. Reversing the postwar trend away from strict construction of the Constitution is just what conservatives aspire to in areas like individual rights and criminal procedure.

A third argument against taking the ''declare war'' clause seriously is that the Congress can stop a war anytime it wants through its control over government spending. But the Constitution gives the Congress the spending power and the power to declare war. The one doesn't make the other meaningless.

Furthermore, when the Congress passed the Boland Amendment -- using its ''power of the purse'' in an effort to stop American support for the Nicaraguan contras -- these same conservative theorists declared that this was an unconstitutional abuse of the spending power that interfere with the president's foreign-policy authority. And when the Reagan administration raised money for the contras abroad, this was declared to be beyond the Congress' power to prevent. Operation Desert Shield is also being financed, supposedly, by foreign contributions.

Forty-five Democratic members of Congress have asked a federal court to stop President Bush from going to war against Iraq without congressional consent. It certainly would be a first if the judge granted the injunction. But -- as judicial conservatives usually love to point out -- the Constitution does not explicitly give judges the right to interpret its meaning.

Procedurally, judges usually get the last word; Justice John Marshall, in Marbury v. Madison, reasoned that when faced with a conflict between government action and the Constitution, judges must enforce the Constitution.

That's where judicial review came from. In rare cases judicial review is impossible, and this may be one of them. There are good, practical reasons why courts should not try to settle disputes between the other two branches. But the president cannot ignore the Constitution just because no court will force him to obey it.

While Mr. Bush tries to convince Saddam Hussein that war is imminent, his lawyers try to persuade the judge that it's not. The action plaintiffs fear, the unleashing of an offensive military attack, ''is entirely hypothetical at this point.'' Wonderful. Let's keep it that way. But if the president gets to feeling less hypothetical, he must go to the Congress first. After all, he keeps saying that we're fighting for the rule of law.

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