Decision on war belongs to Congress

October 09, 2002|By Michael I. Meyerson

President Bush's proposed resolution to Congress seeking authorization to use force against Iraq is a constitutionally inappropriate mechanism for starting a war.

The Constitution placed the power to declare war in the hands of Congress. While there always has been a tension between this responsibility and that of the president as commander in chief, the framers of the Constitution were clear that only Congress can plunge us into war.

The constitutional scheme is premised on a mistrust of presidential power. Remember, this is not a distrust of any particular person; it was, after all, a widespread assumption among those who gathered in Philadelphia that the most respected person in America, George Washington, would be the first president.

Rather, the fear was that no single person, particularly one in charge of the executive branch, should be trusted with the awesome decision to bring our nation into war. As James Madison wrote to Thomas Jefferson: "The Constitution supposes what the history of all governments demonstrates, that the executive is the branch of power most interested in war, and most prone to it. It has accordingly, with studied care, vested the question of war in the legislature."

To be more precise, the "question of war" Madison referred to is not how a war should be conducted once we are engaged in military conflict. The framers viewed war in largely a dichotomous fashion: Either we were at peace or we were at war.

Once at war, it was the task of the president to see us safely through the military campaign. If we were not engaged in hostilities, however, the decision to transform the country into a nation at war was solely the job of Congress. As Alexander Hamilton wrote, the plain meaning of the Constitution is that "it is the peculiar and exclusive province of Congress, when the nation is at peace, to change that state into a state of war."

The critical problem with the resolution that Mr. Bush presented to Congress is that by seeking a conditional grant of power, it leaves to the president the decision to change our nation into a state of war. Thus, a provisional authorization places the ultimate power in the wrong constitutional hands.

The question of whether war is necessary at any particular moment is for Congress to decide. When the president decides that such a moment has arrived, he should then explain to Congress why war is essential and seek its authorization.

In 1964, Congress passed another provisional authorization, the Gulf of Tonkin resolution. Based on allegations by President Lyndon B. Johnson of two unprovoked attacks by the North Vietnamese (one of which never happened), Congress declared that "the United States is prepared, as the president determines, to take all necessary steps, including the use of armed force, to assist" South Vietnam.

With no further authorization sought, President Johnson plunged America into a conflict that eventually cost more than 58,000 American lives. In recognition of its error, Congress repealed the Gulf of Tonkin resolution in January 1971, but it was too little, too late. Then-President Richard Nixon refused to permit Congress to undo what it had done so precipitously.

President Bush has argued that it is important for Saddam Hussein to know that the United States is prepared to use military might if inspections are blocked. "If you want to keep the peace," the president declared, "you've got to have the authorization to use force."

That benefits accrue from the realistic threat of force is undeniable. Much the same benefits, however, could be gained through immediate congressional action, which is more consistent with our constitutional structure.

Congress could pass a nonbinding resolution, declaring its support of the president's attempt to bring Iraq into compliance with U.N. resolutions and to ensure that Mr. Hussein neither possesses nor develops weapons of mass destruction. Further, Congress could declare its intention to authorize the use of force if peaceful means fail to accomplish these goals promptly.

Then, when Mr. Bush believes war has become immediately necessary, he could seek congressional authorization for military action. Thus, it would be Congress asserting its constitutional power, which would decide to make the final decision to enter into a state of war.

When Congress is ready to make that commitment, it should do so in language of immediacy. In December 1941, the United States entered World War II with clear marching orders from Congress, proclaiming that a "state of war ... is hereby formally declared." If the time arises for a similar immediate commitment of our nation's forces against Iraq, let it be Congress that makes this declaration.

Michael I. Meyerson, a professor and Piper and Marbury Faculty Fellow at the University of Baltimore School of Law, is the author of Political Numeracy (Norton, 2002).

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