To Make War To Declare War

December 24, 1990

With the Iraqi crisis reigniting the historic struggle between the presidency and the Congress over war powers, federal Judge Harold H. Greene has made the startling claim that the judiciary can intervene under certain circumstances when "action by the courts would appear to be the only available means to break the stalemate." Another federal judge, Royce Lamberth, sticking to tradition, has issued a contradictory ruling that the courts lack the "expertise, resources and authority" to intrude in such a "political" question.

These conflicting opinions may be at the forefront of national debate after the 102nd Congress convenes Jan. 3, just 12 days before the United Nations deadline for Iraq to get out of Kuwait.

The 54 Democrats who initiated the suit that came before Judge Greene now have the task of trying to amass a majority to block President Bush from launching a war against Iraq. Only then, Judge Greene said, would the case be "ripe" for judicial decision. The administration, in contrast, may seek a statement of congressional support, along the lines of the U.N. resolution, to maintain the credibility of the U.S. threat.

At issue is a controversy that goes back to the writing of the Constitution. The Founding Fathers were at first inclined to give Congress the power to "make" war. But in a briefly debated change, the language was altered to give Congress the power merely to "declare" war on the ground that to conduct a war was surely an executive function. In the two centuries since, presidents have sent U.S. forces into battle 192 times while obtaining declarations of war only five times.

This pattern has led in recent times not only to such big undeclared wars as Korea and Vietnam but to smaller military actions in the Dominican Republic, Libya, Lebanon and Panama. Defense Secretary Richard Cheney has testified that President Bush already has ample authority to move against Iraq without congressional approval, a doctrine that led to Democratic protest and Judge Greene's ruling.

The judge apparently broke new legal ground by indicating that legislators do have "standing" to protest executive branch policy before the court and that the judiciary, in turn, can intervene in such cases. The debate could go right up to the Supreme Court early in the year.

Perhaps Judge Greene's decision will force Congress to face institutional limitations that have led over the years to more and more executive branch authority over foreign policy and military/security affairs. But until Congress proves it can act decisively, the courts likely will remain on the sidelines and the presidency will run the show.

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