Pat Dollard | Young Americans

CNS:

Who has the primary authority to wage war on the behalf of the United States: the commander-in-chief or the Congress? It’s a question that’s been raised several times in history, and one that Congress thought was settled by the adoption of the Vietnam-era War Powers Act of 1973.

Now sponsors of a resolution to amend that law hope to settle that question permanently and make it clear that the president must always seek the consent of Congress before getting the nation involved in armed conflict or war.

At a press conference Thursday on Capitol Hill, Reps. Walter B. Jones (R-N.C.), William Delahunt (D-Mass.), Ron Paul (R-Texas) and Wayne Gilchrest (R-Md.) announced the introduction of H. J. Res. 53, the Constitutional War Powers Resolution.

“This bill will inject Congress into the process, so that it can meet its constitutional responsibility,” Jones said. “We will require more reporting from the White House, and we will require more consultation with the White House. This is a bill I think will have a lot of support in Congress.”

Jones, a conservative from North Carolina whose district includes the Marine Corps installation Camp Lejeune, is an ardent critic of the war in Iraq, but he said the legislation isn’t about Iraq.

“This is about future wars, not Iraq,” Jones told Cybercast News Service. “But the failed policy in Iraq has helped me understand that in behalf of the American people, in behalf of those children today that might one day be sent to war, that Congress must meet its constitutional responsibility, and this bill will help the Congress meet its responsibility.”

Under the War Powers Resolution of 1973, the president must consult Congress within 60 days of engaging the U.S. in armed hostilities. If members do not authorize his action, he is required, by law, to remove U.S. forces from action.

The new Jones-Delahunt resolution would specifically prohibit the president from entering into future hostilities without congressional action except to specifically “repel and retaliate for an attack on the United States, repel an attack on U.S. troops, or protect and evacuate U.S. citizens.”

It would also give members of Congress legal standing in any court action on the issue.

Delahunt will shepherd the measure through the Democratic Congress.

“The War Powers Resolution has never worked,” he said. “According to the Congressional Research Service, there have been 120 executive branch filings ‘consistent with’ the War Powers Resolution, but only one that started the 60-day clock ‘pursuant to’ it.

“As a result, this is too dangerous a period of history for us to be floating around with no rules, no regular process, and no consensus on the authority for such a decision,” Delahunt added.

Paul, a declared presidential candidate, said he is co-sponsoring the measure, though the Constitution itself is specific enough.

“My first choice has always been to repeal the War Powers Resolution and follow the declaration of war provision in the Constitution,” Paul told Cybercast News Service. “But in the meantime, I think this new resolution is an improvement over what we have.”

What did the framers intend?

The power to declare war is laid out in Article I, Section 8 of the U.S. Constitution, otherwise known as the War Powers Clause.

Specifically, it says Congress has the power “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”

Ronald Rotunda, a professor of law at George Mason University, said the debate over war powers will eventually have to be decided by the Supreme Court - it’s a major constitutional issue that has never really been settled.

Even the 1973 War Powers Resolution, part of which was declared unconstitutional, was never fully reviewed by the court, he added.

“A congressional resolution is not going to be the end of the matter,” Rotunda said. “The courts will have to decide it.”

Historically, though, the courts have regarded the dispute over war powers as a turf war between Congress and the president. But now the question is being posed in the high-speed age of global terrorism.

“We know that the Framers of the Constitution initially had language that said, only Congress can ‘make war,’ and changed it to only Congress can ‘declare war’ - they changed it because they realized that there were wars we would be in that were not officially declared,” Rotunda said.

“In fact, the bloodiest war in American history, the Civil War, was never declared. The last time the United States was in a declared war was World War II, and we’ve had lots of wars since then,” Rotunda added.

However, Thomas Woods, senior fellow in American history at the Ludwig von Mises Institute and author of “The Politically Incorrect Guide to American History,” said the historical documents are clear: the Framers intended the war powers to belong only to the legislative branch - unless the U.S. was attacked by surprise and there was no time to assemble Congress.

Early on in American history, Woods said, the Supreme Court held that even in lesser conflicts, such as the “near-war” that the United States fought with France in the 1790s, Congress needed to authorize presidential military action.

In one famous case during that time, he said, a ship commander actually got into trouble for following President Jefferson’s order allowing privateers to seize any ship going to — or coming from — France.

“Congress had directed the president simply to seize any ships coming from France, not ships going to France,” Woods said.

“Well, this ship commander seized a ship that was going to France. He listened to the president rather than the Congress. What did the Supreme Court say?” he added.

“The court said the Congress has the power to lay out these statutes and this ship commander could not claim that he was exonerated because he was following the president. A presidential order, even in war time, does not trump a congressional statute,” Woods said.

Louis Fisher, a researcher at the Library of Congress and author of the book, “Presidential War Power,” sides with Woods. He said there’s no historical justification for the idea that a president can unilaterally act to send troops.

“The first president who ever did that, and got us into a big war without coming to Congress, was Harry Truman,” Fisher said. “He went to the U.N. Security Council over Korea as a substitute for Congress, and it has caused problems ever since.”

The War Powers issue isn’t likely to be resolved soon, though the University of Virginia’s Miller Center of Public Policy has pledged to try. In February, it convened a blue-ribbon national commission, chaired by former Indiana Congressman Lee Hamilton to examine the question.

The commissioners, which include former Attorney General Ed Meese and historian Doris Kearns Goodwin, hope to issue a report within months.