Mario Cuomo argues that the Webb-Clinton proposal to demand President Bush get a congressional declaration of war before taking military action against Iran is redundant because Article I, Section 8 of the Constitution already requires this. Further, “Because the Constitution cannot be amended by persistent evasion, this mandate was neither erased nor modified by the actions or inactions of timid Congresses that allowed overeager presidents to start wars in Vietnam and elsewhere without making a declaration.”
Congress’s refusal to comply with Article I, Section 8 of the Constitution has led to a catastrophic aftermath. Such a tragedy should never be allowed to happen again. Rather than enact new legislation that would create constitutional ambiguity, the Democratic leadership in Congress should assert its strength by simply announcing it will allow no “resolutions” or “authorizations” purporting to delegate to the president Congress’s constitutional power to declare war against any other nation. Nor will there be any new war without Congress’s solemn deliberation and declaration of war.
The Democrats should go still further and announce that no money will be appropriated for any military action against another nation without a proper declaration of war. And this should be the position of the Democratic presidential candidates as well. How else can they make the case that they are less likely than President Bush to wage dangerous, improvident wars?
The Supreme Court has long since rejected Cuomo’s interpretation of the Constitution; indeed, Congress itself did so formally with the 1973 War Powers Act. FindLaw does an excellent job summarizing the relevant case law.
In the early draft of the Constitution presented to the Convention by its Committee of Detail, Congress was empowered ”to make war.”1412 Although there were solitary suggestions that the power should better be vested in the President alone,1413 in the Senate alone,1414 or in the President and the Senate,1415 the sentiment of the Convention, as best we can determine from the limited notes of the proceedings, was that the potentially momentous consequences of initiating armed hostilities should be called up only by the concurrence of the President and both Houses of Congress.1416 In contrast to the English system, the Framers did not want the wealth and blood of the Nation committed by the decision of a single individual;1417 in contrast to the Articles of Confederation, they did not wish to forego entirely the advantages of executive efficiency nor to entrust the matter solely to a branch so close to popular passions.1418
The result of these conflicting considerations was that the Convention amended the clause so as to give Congress the power to ”declare war.”1419 Although this change could be read to give Congress the mere formal function of recognizing a state of hostilities, in the context of the Convention proceedings it appears more likely the change was intended to insure that the President was empowered to repel sudden attacks1420 without awaiting congressional action and to make clear that the conduct of war was vested exclusively in the President.1421
An early controversy revolved about the issue of the President’s powers and the necessity of congressional action when hostilities are initiated against us rather than the Nation instituting armed conflict. The Bey of Tripoli, in the course of attempting to extort payment for not molesting United States shipping, declared war upon the United States, and a debate began whether Congress had to enact a formal declaration of war to create a legal status of war. President Jefferson sent a squadron of frigates to the Mediterranean to protect our ships but limited its mission to defense in the narrowest sense of the term. Attacked by a Tripolitan cruiser, one of the frigates subdued it, disarmed it, and, pursuant to instructions, released it. Jefferson in a message to Congress announced his actions as in compliance with constitutional limitations on his authority in the absence of a declaration of war.1422 Hamilton espoused a different interpretation, contending that the Constitution vested in Congress the power to initiate war but that when another nation made war upon the United States we were already in a state of war and no declaration by Congress was needed.1423 Congress thereafter enacted a statute authorizing the President to instruct the commanders of armed vessels of the United States to seize all vessels and goods of the Bey of Tripoli ”and also to cause to be done all such other acts of precaution or hostility as the state of war will justify . . .”1424 But no formal declaration of war was passed, Congress apparently accepting Hamilton’s view.1425
Much more at the link, with the footnotes themselves linking to relevant cases. The bottom line, though, is that presidents have, since Thomas Jefferson’s day, claimed the inherent right as the nation’s chief executive to conduct war and the courts and Congress have allowed them to do so.
Further, the two longest wars conducted without formal “declaration of war” by Congress, Vietnam and the current Iraq War, were both pursuant to acts of Congress authorizing the use of force. Most scholars see those as having the same effect as a declaration; indeed, the distinction may well be meaningless.
Cuomo is on much firmer ground with the public policy question of whether it would be a good idea for Congressional deliberation and authorization to precede going to war. Presuming that the nation isn’t under direct attack or facing imminent action, thus requiring more speedy response than a legislature can provide, it would seem obvious that the answer is Yes.
Presidents command the national security apparatus of the country and have access to the collective wisdom of our diplomats, military professionals, and intelligence community in a way Congress doesn’t. But executive decision-making process tends to come down to one man getting advice from a handful of others. Groupthink and the vagaries of bureaucratic information filtering can skew the process tremendously. If nothing else, Congress at least slows down the process and brings in a wider set of perspectives.
Practically speaking, as Theodore Roosevelt taught us, Congress’ ability to simply not fund ongoing military operations is far more theoretical than real. There’s a natural rally effect once the country is at war and troops are in harm’s way and the public simply demands that the legislature get on board. Only after a protracted engagement does this change.
Ultimately, the solution to the problem of going to war willy-nilly to achieve non-emergency goals is a radical shift in the national consensus. It appeared that we’d achieved that after the myriad optional wars of the 1990s when a fellow by the name of George W. Bush ran on a platform of “no nation building.” Alas, we all know what happened next.
