War Powers  / The White House Continues To Defy the Constitution
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WHO HAS THE POWER TO DECIDE?
John C. Bonifaz is an attorney in Boston with the Law Offices of Cristobal Bonifaz.
Lost in the debate about whether or not our nation should wage war on Iraq is a fundamental question: Who has the power to decide?
Article I, Section 8 of the United States Constitution states: “The Congress shall have Power ... To declare War....” This simple and clear language requires that the decision of whether or not we go to war must be made by the legislative branch. By definition it specifically prohibits the president from making that decision, as the authors of the Constitution deemed the power to wage war to be too great to place in the hands of one individual.
[T]he decision of whether or not we go to war must be made by the legislative branch.
In October 2002, Congress passed a resolution that gave President Bush the power to fight terrorism. A loose reading of it would lead one to believe that it gave him the power to start wars. But the content of it does not issue a declaration of war against any nation. Rather, it states that the president “has authority under the Constitution to take action in order to deter and prevent acts of international terrorism against the United States....” It does not and cannot alter the express language of Article I, Section 8 of the Constitution. Only a constitutional amendment could do so.
U.S. Senator Robert C. Byrd (D-W.V.) opposed the resolution because he thought it was unconstitutional. In his October 3 remarks on the Senate floor he spoke of the framers of the Constitution who foresaw “the frailty of human nature and the inherent danger of concentrating too much power in one individual. That is why the framers bestowed on Congress, not the president, the power to declare war.” He quoted James Madison, who wrote in 1793: In no part of the Constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not the executive department. Beside the objection to such a mixture to heterogeneous powers, the trust and the temptation would be too great for any one man....

During the Vietnam War, the U.S. Court of Appeals for the Second Circuit heard a series of cases challenging the authority of the executive branch to wage war. In Orlando v. Laird, the court reiterated an earlier opinion that “the constitutional delegation of the war-declaring power to the Congress contains a discoverable and manageable standard imposing on the Congress a duty of mutual participation in the prosecution of war.” Relying on that, the court asked “whether there is any action by the Congress sufficient to authorize or ratify the military activity in question.”
The core of the Orlando ruling is this: “Congress and the Executive have taken mutual and joint action in the prosecution and support of military operations in Southeast Asia from the beginning of those operations.” The court cited the following evidence to support this holding: the Gulf of Tonkin Resolution; the congressional appropriation of billions of dollars to implement operations in Southeast Asia; and Congress’ extension of the Military Selective Service Act, which was done with Vietnam in mind.
A challenge to the president’s authority to wage war against Iraq would highlight the fact that no such legal groundings exist in this case. Congress has yet to pass any military appropriation acts for this war and has yet to initiate a military draft. The only action Congress has taken is the passage of the resolution last October which, far from declaring war, allows the president to fight terrorism but does not allow him to launch into war against another country.
Very few members of Congress who voted for the Iraq resolution thought they were handing President Bush war-making powers. Just read the statements made on the floors of the House and the Senate by the resolution’s proponents. Also, on Jan. 24, 2003, 123 members of Congress sent a letter to the president stating that “the US should make every attempt to achieve Iraq’s disarmament through diplomatic means and with the full support of our allies.” Of the signers, 22 had voted for the resolution.
For these reasons, President Bush’s continued march toward war, absent a congressional declaration, demands judicial intervention. Calling for such intervention is not merely -- as it will surely be portrayed -- an act of desperation on behalf of the anti-war community. It is a supremely relevant, historically profound question about which branch of government has the power to start a conflict with another nation. The integrity of the Constitution itself demands that this question be asked now.