Just Who Can Send Us to War?

By John Elson

For the Bush Administration, there are two tense face-offs in the Middle East crisis. The other one is in Washington. There the White House is skirmishing with congressional Democrats over a constitutional question: Can President Bush commit U.S. forces to combat without first gaining the consent of Congress?

Last week the debate intensified. "I do not believe that the President requires any additional authorization from the Congress," Defense Secretary Dick Cheney told the Senate Armed Services Committee. "The President, as Commander in Chief . . . has the authority to commit U.S. forces."

Not so, answer the Democrats. By a vote of 177 to 37, the House Democratic Caucus passed a nonbinding resolution stating that unless American lives are in immediate danger, the President may not initiate an offensive action in the Persian Gulf without first obtaining congressional approval. On the same day, in a packed Washington courtroom, Federal Judge Harold Greene heard oral arguments in Dellums v. Bush, a petition by 54 congressional Democrats seeking an injunction that would bar the President from taking offensive action against Iraq without the prior consent of Congress.

The legal dilemma involves two competing clauses in the nation's governing document. Article I, Section 8, of the Constitution states, "The Congress shall have Power . . . to declare War." But according to Article II, Section 2, "The President shall be Commander in Chief of the Army and Navy of the United States." In Judge Greene's courtroom, Attorney Stuart Gerson of the Justice Department argued that history provides numerous examples of Presidents exercising their powers as Commander in Chief without a formal declaration of war. Thomas Jefferson, he noted, committed the Navy to battle against the Barbary pirates without a green light from the legislature. By contrast, Congress has formally declared war only five times, most recently in 1941. Nothing in the Constitution, Gerson contended, says Congress has to declare war before hostilities begin.

A substantial body of legal opinion backs the view of California Democrat Ronald Dellums, organizer of the petition, who argues, "The Constitution clearly gives Congress the right to declare war. This situation is too grave for one person to take us into it alone." Laurence Tribe, Harvard's famed professor of constitutional law, agrees with this. Tribe dismisses as a "smokescreen" the Administration view, put forward by Secretary of State James Baker, that presidential consultation with Congress would be a legally sufficient substitute for a formal declaration of war. "The structure and history of the Constitution," Tribe contends, "make clear that the framers deliberately rejected any scheme that would give the Chief Executive the power to make the basic decision in favor of war."

Tribe was one of 11 nationally known law professors, including conservatives as well as liberals, who wrote and signed an amicus curiae brief in support of the Democrats' petition. Another co-signer, William Van Alstyne of Duke Law School, challenges the argument that there have been at least 130 acts of war that lacked congressional approval. "The number is widely inflated," he says. "A lot of them don't count, since they were for limited circumstances and for short periods of time." In his view, the fact that the congressional war-power clause has sometimes been ignored does not render it moot. Says Van Alstyne: "The extent to which the allocation of war powers has been disregarded for the past 25 years is no reason we should continue to disregard it."

Advocates of presidential authority note a similarity between the present situation and one in 1950, when Harry Truman committed U.S. forces to the defense of South Korea in compliance with a United Nations Security Council resolution. But Columbia Law School's Louis Henkin notes that "Congress immediately ratified and acquiesced in the action." Moreover, he says, "we have no case where the President went to war when Congress told him not to."

In 1964 Congress approved the moral equivalent of a war declaration with the Gulf of Tonkin Resolution, which authorized Lyndon Johnson to use whatever force was necessary to protect U.S. troops in Vietnam. Frustrated by the bootless escalation of that conflict, Congress nine years later overrode Richard Nixon's veto of legislation requiring a President to withdraw troops from hostile areas after 60 days unless Congress approves the deployment. Several Presidents have declared that War Powers Resolution unconstitutional, although none asked the courts for a ruling.

Instead, Administration attorneys have deflected the courts' attention by arguing, as Gerson did last week, that war powers are a "political question" and thus beyond judicial review. The law professors' brief rejected that view, although Judge Greene's questions indicated that the issue bothers him.

Even if he and higher courts sidestep the problem, Congress can stay the President's hand by exercising another power found in Article I, Section 8: refusing to fund the war, as Congress eventually did in Vietnam. But the ultimate check on White House adventurism may be the one noted by the late American historian Clinton Rossiter: "The people with their overt or silent resistance, not the court with its power of judicial review, will set the only practical limits to arrogance of abuse."

With reporting by Jerome Cramer/Washington and Andrea Sachs/New York