18 March 2008

Is Authorization to Use Force Good Enough?

A question I've been pondering lately. Article I, section 8 of the Useless, I mean U.S. Constitution grants Congress the power "To declare War." But does that mean Congress has to say, "We declare war," or can they simply say, "We authorize the President to use force"?

Politically, an actual declaration of war seems a bolder step, so might be desirable as a way of limiting how often we actually go to war. Empirically, this doesn't seem to have happened, although perhaps if we insisted that nothing less than an actual declaration of war was legitimate it might.

But from a constitutional interpretation perspective, does the text demand that kind of interpretation?

Article I, section 8 also authorizes Congress to create tribunals inferior to the Supreme Court. Does that mean legislation creating a new Circuit Court of Appeal, or District Court, must being with the words, "We hereby constitute a Tribunal inferior to the Supreme Court?"

I've been telling students for years that we haven't declared war since WWII, but have been involved in many military conflicts since then anyway, implying that they're all illegitimate. And some clearly are...for example Clinton's insertion of troops into Yugoslavia without even consulting Congress, which really was nothing less than an implicit presidential declaration of war upon the Serbs (not that the action wasn't ethically justified, but that's not my point today). But in the Persian Gulf War, and in the current Iraq war, Congress authorized the use of military force against another country--e.g., they authorized acts of war. And I'm not sure why that's not constitutionally satisfactory.

Granted, Bush declared he had the authority to go to war anyway (he certainly had lots of presidential precedent), but in the end, Congress did give him authorization. And Congress has always declared war only in response to a presidential request for it, I believe.

I don't know. I have to grade 45 student papers on the President's co-optation of the war power, and now I'm not quite so sure what I think about it.


James K said...

The trouble of course is that your constitution was created in the 18th century, when war was war, peace was peace, and a ruler was held is no bad regard for starting an imperial war.

These days, the lines between war and peace are indistict and the forms of war reveal the truth behind Clausewitz's description of war as "policy by other means".

As far as the wording goes, it seems to me that Congress in simply delegating its war powers to the President. I don't think this is a terribly good idea, but I don't see why it should be forbidden.

The entire Westminister system of government is based on delegation. Every New Zealand government official with financial or decisional powers is granted them by a chain of delegations that stretches back to the Queen.

I don't know if that's how it works in your neck of the woods, but I see delegation as unobjectionable.

James Hanley said...

Under our Constitution, delegating legislative power to the executive is a very tricky issue. It's usually unconstitutional.

The exceptions are when we can find a way to pretend it's not really a delegation. For example, Congress writes broad environmental legislation, and then lets the Environmental Protection Agency write the detailed "rules." The rules aren't "laws" because they're not passed by Congress and signed by the President, but if you violate one it turns out they have the force of law.

I think with the war-declaration power, an actual delegation would be unconstitutional. It's a wrinkle I hadn't thought about yet--thanks for bringing it up.

Scott Hanley said...

Like much in the Constitution, it's helpful to think in terms of what the Founders wanted to avoid. The Executive is C-in-C to avoid trying to run a war by committee (and they knew all about that - administratively, the revolution had been a fiasco). But they didn't want a President who could just start his own wars, either.

I would like to see Congress take more responsibility for deciding when a war will occur. But at this point, I don't care for them setting troop levels and deadlines, either.

James Hanley said...

Good points, Scott. Too bad a so-called originalist like Scalia doesn't understand to look at the Constitution that way.

James K said...

I can see why you wouldn't want the executive horning in on the legislature's racket.

In the Westminister system, this is less of an issue because the Prime Minister control both branches. That's why we give all the war powers to the PM because it works out the same either way.

James Hanley said...

"In the Westminister system, this is less of an issue because the Prime Minister controls both branches."

Yep, the separation of powers business really does create governance difficulties. Of course that's pretty much what it was designed to do, but it's a strange thing that we Americans point to separation of powers as part of what makes our system the best on earth, while simultaneously bitching that the government is gridlocked.

I think if we did a poll, most of my fellow citizens couldn't tell you what separation of powers really is.

James K said...

And I bet that if they knew most wouldn't know why it was important.

Not that I'm trying to be all superior here or anything, recent years have seen serious discussion in New Zealand about hate speech laws and removing the right against self-incrimination.

As for the Westminister system, the reason it lacks separation of powers is because Parliament (legislative) needed to be united against the King (executive), that fell apart as Parliament claimed more and more of the King's powers.