July 08, 2008

War Powers and the Iraq War
— Gabriel Malor

Baldilocks spotted the news this morning that foolish former government officials are proposing to further restrict the president's power to wage war. They acknowledge that the War Powers Act is largely unconstitutional, but then suggest that the an equally unconstitutional replacement be created. A "consultative process" must be in place for approving or disapproving "significant armed conflict" because (they claim) such a process does not already exist.

Oh, but it does. Article I, sec. 8 gives to Congress the power to declare war and Article II, sec. 2 gives to the President the power to wage it. There's your consultative process. Baldilocks skips the pretext and goes right to the real issue here: the Iraq War and the Democrats' inability to move legislation to stop it.

What was the purpose of H.J. Res. 114 (Authorization for Use of Military Force Against Iraq Resolution of 2002)? Did the president require anything further?

After taking control of Congress in January 2007, Democrats tried to cap force levels and set a timetable for withdrawals. They lacked a veto-proof majority to put the restrictions into law, and the White House argued that such legislation would have violated the Constitution by infringing upon the president's role as commander in chief to protect the nation. Democrats disagreed, contending there was ample precedent.

The one surefire way for Congress to have ended the war was to cut off money for combat operations — a step most Democrats weren't willing to make because they feared doing so would have hurt troops in harms' way, or at least be perceived by voters that way.

The democrats didn't have enough votes to do what they wanted to do. And?

Perhaps I'm missing something.

She's not missing anything. Congress has the power to halt the war at any time. It just hasn't meaningfully exercised that power. Since they are so helpless, many Democrats and even many Republicans, including Ron Paul, Alberto Gonzales, and James Baker, have attempted to cast doubt on the legitimacy of the Iraq War by claiming that it is not a "proper" war. They are, each and every one of them, constitutionally illiterate on that topic. As Baldilocks points out, the AUMF is enough to declare war and periodic funding is enough to continue it. There is no need for the legislation to contain the "magic words" Declaration of War.

If you're interested, my discussion of AUMFs and declarations of war from last year is in three parts: Part 1, Part 2, and Part 3.

Posted by: Gabriel Malor at 06:31 AM | Comments (27)
Post contains 429 words, total size 3 kb.


Yeh - a "war council" would solve everything.  If we just talked about the problem longer, that would fix it...

Frickin idiots!

Posted by: Diogenes at July 08, 2008 07:14 AM (2MrBP)

2 Did anyone try write any such thing into the Iraq War resolution ?

Posted by: Neo at July 08, 2008 08:05 AM (Yozw9)

3 That "veto proof majority" isn't needed to stop funding.

Posted by: Neo at July 08, 2008 08:07 AM (Yozw9)

4 POLL NUMBERS~!  POLL NUMBERS!!!1!!!1!1!!11!!!

Posted by: johN ryAn at July 08, 2008 09:48 AM (ukuxx)


As I said over at Baldi's:

Congress already has the tools it needs to do what it wants. Those tools require mustering veto-proof majorities, and the spine to pull funding from troops in the field. The latter requirement pretty much guarantees that the former requirement will be very hard to meet.



Posted by: Tully at July 08, 2008 09:55 AM (tUyDE)


Any contention of military force between two nations is a public war.  The war may be perfect, that is solemnized by a full declaration; or it may be an imperfect war limited to certain persons and places as authorized by the the appropriate powers.  But it is a legal war no matter how limited or total the war is.

The Eliza, 4 US 37, 40 (1800) is a cite on this subject.

Posted by: Mikey NTH at July 08, 2008 10:05 AM (O9Cc8)

7 I'll second Gabe's suggestion to read about war powers from his posts last year.  An excellent source of information and very useful in demolishing the misconceptions of the Ronulans.

Posted by: JohnTant at July 08, 2008 11:16 AM (PFy0L)


Ron Paul only thinks he is GOP.


Posted by: Cincinnatus at July 08, 2008 11:21 AM (ZAlQ3)

9 No, Ron Paul knows he's not GOP. He just wants you to think he's GOP.

Posted by: XBradHusseinTC at July 08, 2008 11:24 AM (pSXbN)


How can one reasonably use Ron Paul and thinking in the same sentence without invoking the negative? 

Posted by: The Machine at July 08, 2008 11:37 AM (kLBpP)

11 Since the First Gulf War never really ended but was only in cease fire, isn't any action taken in 2003 against Saddam for violating the terms of that ceasefire authorized under the original Gulf War sanction?

Posted by: Stinky Esposito at July 08, 2008 01:06 PM (aHiF6)

12 Stinky, under international law, the violation of a cease fire justifies resumption of hostilities. As a matter of domestic law, probably not in the case of the original Gulf War enabling legislation because it was superseded by funding and Iraq-related resolutions throughout the 90s and early 2000s. It would be a stretch to say that the original Gulf War resolution was intended by Congress to extend to actions taken after a decades-long cessation of hostilities.

Posted by: Gabriel Malor at July 08, 2008 01:12 PM (WIxQ1)

13 If the AUMF is not a declaration of war, then a man couldn't be tried for murder if  he rendered someone deceased instead of killing them.

Posted by: Grimmy at July 08, 2008 01:33 PM (AzzAY)


Good points, Gabe.

I believe you have missed one other war that was never declared:  the Civil War.  For the Union to declare war against the Confederacy would have legitimized it as a Nation-State.  There was no way that could happen.

If I rightly recall, more Americans died in that war than all of the others we have fought combined.

Posted by: otcconan at July 08, 2008 01:54 PM (VLRPD)

15 otcconan, you raise an interesting legal question. For starters, what constitutional authority did President Lincoln have to institute a draft? What constitutional authority did he have to use U.S. troops against U.S. citizens? What constitutional authority did he have to suspend habeas corpus? Lincoln said it was a necessary "War Power" of the President, but no war powers are referenced in the Constitution except the congressional power to declare war and the president's position as Commander-in-Chief.

The courts later answered the habeas corpus question by finding that a president has no power to suspend habeas corpus; Congress could do it pursuant to the suspension clause. The other questions went unanswered.

Posted by: Gabriel Malor at July 08, 2008 02:27 PM (WIxQ1)

16 I do agree that the CAUF not only is the way into Iraq, but the way to peace as the reasons given in it have a definite end-state.  Actually the CAUF goes quite further than just Iraq, and proves to be one of the fuller uses of the Congressional war powers for both Public and Private war in quite some time... although not fully utilizing its Private war retribution power via the letters language, Congress calls on the President to do his duty against those waging Private war via the terrorism language.  Fascinating that Congress would overlook its positive powers in that realm, really.  That is something that most folks don't like looking at because it points out that the latter part covers things far worse than Public war.  Not that there is a centuries old definition of these things... written into our Constitution and understood at the founding... actually a far better idea of that sort of thing back then than we have today.

Posted by: ajacksonian at July 08, 2008 05:19 PM (oy1lQ)

17 Point of order, the power to declare war does not implicitly carry with it the power to declare the end of hostilities. It is much more likely that power was meant to rest in the hands of the one waging the war and the signing and subsequent ratification of treaties to that effect.

Posted by: ravenshrike at July 08, 2008 07:08 PM (C63A/)


They exhibit the cowardice of their convictions. 

Revenue bills must originate in the House.  The Democratic majority can block funding.  The rest is all political posturing. 

Posted by: MarkD at July 09, 2008 05:03 AM (MMy4A)


I believe the term Lincoln used for the war was "insurrection."  By that definition, the South were traitors to the Union and therefore were accorded no rights anyway.

That's just what I'm guessing.

Posted by: otcconan at July 10, 2008 12:11 AM (VLRPD)

20 All this thing about right of starting war without asking other world opinion is wrong. You guys better listen this: http://www.youtube.com/watch?v=ySWoSklsCI4&feature=user

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