Who's Declaring War?
by Sheldon Richman
October 3 , 2002

In the drive for war against Iraq, President Bush and the Congress are colluding to violate the U.S. Constitution. What they are planning is no less than an illegal delegation of the Constitution’s war-declaring power. Both parties need to be called on this before they make further mockery of the country’s basic law.

Two important constitutional principles must be understood. First, the Constitution gives the power to declare war exclusively to the Congress. Second, Congress may not delegate its authority to another branch of the government. But that is exactly what the Congress will be doing if it approves the force-authorization resolution that President Bush, the House leadership, and key senators have now agreed to.

The resolution would authorize Mr. Bush to "use the Armed Forces of the United States as he determines to be necessary and appropriate in order to 1) defend the national security interests of the United States against the continuing threat posed by Iraq and 2) to enforce all relevant United Nations Security Council resolutions regarding Iraq." The key phrase is "as he determines to be necessary and appropriate." It would be consistent with the resolution for Mr. Bush to decide that it was neither necessary nor appropriate to use force against Iraq at all.

In other words, the Congress is not declaring that a state of war exists between Iraq and the United States. On the contrary, the President will decide when and if a state of war exists. The resolution requires only that he "certify" that diplomatic efforts have failed before he uses force. Indeed, House Minority Leader Richard Gephardt confirmed that Congress will not be declaring war when he said, "we should deal with it [the Iraqi problem] diplomatically if we can, militarily if we must. And I think this resolution does that."

That is unconstitutional.

To see this point, it’s helpful to consider how other presidents asked Congress for the authority to wage war and how Congress responded. Bear in mind that these requests came after overt attacks, not putative threats. What I wish to draw attention to is not the merits of these presidents’ arguments, but the legal form of their dealings with Congress.

On April 2, 1917, after Germany had resumed submarine warfare and sunk American and other ships, President Woodrow Wilson went before Congress to seek entry into World War I. He began his message by invoking the Constitution, "I have called the Congress into extraordinary session because there are serious, very serious, choices of policy to be made, and made immediately, which it was neither right nor constitutionally permissible that I should assume the responsibility of making."

After detailing Germany’s hostile act against the United States, Wilson said, "With a profound sense of the solemn and even tragical character of the step I am taking and of the grave responsibilities which it involves, but in unhesitating obedience to what I deem my constitutional duty, I advise that the Congress declare the recent course of the Imperial German Government to be in fact nothing less than war against the Government and people of the United States; that it formally accept the status of belligerent which has thus been thrust upon it, and that it take immediate steps not only to put the country in a more thorough state of defense but also to exert all its power and employ all its resources to bring the Government of the German Empire to terms and end the war."

Four days later Congress passed a joint resolution, declaring, "Whereas the Imperial German Government has committed repeated acts of war against the Government and the people of the United States of America: Therefore be it Resolved...That the state of war between the United States and the Imperial German Government which has thus been thrust upon the United States is hereby formally declared; and that the President be, and he is hereby, authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial German Government; and to bring the conflict to a successful termination all of the resources of the country are hereby pledged by the Congress of the United States."

Similarly, on December 8, 1941, the day after Japan attacked Pearl Harbor, President Franklin Delano Roosevelt went before Congress and said, "I ask that the Congress declare that since the unprovoked and dastardly attack by Japan on Sunday, December 7, a state of war has existed between the United States and the Japanese Empire."

That same day Congress, echoing their predecessors of 24 years earlier, passed a joint resolution, declaring, "That the state of war between the United States and the Imperial Government of Japan which has thus been thrust upon the United States is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial Government of Japan; and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States."

Note that Wilson and Roosevelt went to Congress only when they had decided that the time for diplomacy had passed and that only military action would suffice. Those congresses did not leave it up to the presidents to decide if they would engage in warfare against Germany and Japan. Acceding to the presidents’ requests, they acknowledged existing states of war and authorized them to use the armed forces to bring it to a conclusion.

This is a far cry from what the Congress is doing today. Mr. Bush has not informed Congress that a state of war exists between Iraq and the United States. He has not detailed Iraq’s hostile acts against the United States (of which there are none). And Congress is not planning to recognize any existing state of war. Instead, it is set to delegate its constitutional responsibility to the President, as if to say: "You decide when and if there is a state of war. You decide what to do about it."

That, I submit, violates the Constitution.

Sheldon Richman is editor of Ideas on Liberty magazine, published by the Foundation for Economic Education.