Is the Iraq War Constitutional?

Posted by Eric F. Langborgh on 19 Jul 2007 at 11:34 am

(UPDATE — 7/31/07:  What follows is an edited version of the original posting.  Upon further research, I’ve determined that one section wasn’t exactly correct, so I have removed it and edited the surrounding text to smooth the transition.  As the removed section was a minor point and probably distracted from the major point, this amended article should prove more helpful to my argument and the reader’s understanding.)

Article I Section 8 of the United States Constitution places the power to declare war with Congress. The Framers, as I explained in some detail recently, reasoned that the decision to send the sons of the people off to war must rest with the representatives of the people. Without rehashing the full post, Alexander Hamilton and James Madison made clear in the Federalist Papers that the president was not to be like the English monarch, who did have the power to declare war and whose rule the Americans had recently thrown off. Hence, according to Article II Section 2, “The President shall be Commander in Chief … when [our forces are] called into the actual service” (emphasis mine). He shall direct the prosecution of the war, but only after Congress calls the military to service through a Declaration of War.

In the ongoing debate over the present Iraq War, I have stood opposed since before we first attacked on March 19, 2003. I opposed the war on prudential grounds, believing it to be both unwarranted and counterproductive to the War on Terror. And I opposed it because it is unconstitutional, lacking the congressional Declaration of War required by the Constitution for sustained offensive actions against another sovereign nation. It is this last objection that supporters of the war seem to resent the most. To them, this is all semantics, as they readily point to the resolution Congress passed authorizing the use of force in Iraq.

But is it just semantics? I argue that it is not. Rather, the issue is fundamental. A Declaration of War is a law passed by Congress that then demands the president to prosecute the war as effectively as possible — and gives him the means to do so. It is binding on the president and the nation. The “Authorization for Use of Military Force Against Iraq Resolution of 2002″ (H.J. Res.114), which finally passed both the House of Representatives and the Senate on January 23, 2002, did not do this.  Rather, its utility was merely to provide legislators cover for their abdication of their constitutional responsibility concerning the decision to make war. The resolution shuffled off that responsibility to the president, “permitting” him to make the decision to go to war — like the old English monarch — instead.

Another way to look at it is this way: Everyone agrees, usually for reasons they don’t understand themselves, that a congressional Declaration of War against Iraq would have been much harder to pass than the resolution. People naturally and rightly intuit that this would be the case. And the reason that is the case is because a Declaration of War commits us to war, and it does so with the objective to win. The resolution, on the other hand, merely opens the door to war, and conditioned the use of force in a way that is at the same time limited and undefined. (In practice, the latter also opens the prosecution of war up to all sorts of politicking and second-guessing. The former provides decisive clarity, and ensures a much more united country behind the war effort. But I digress.)

In what follows, I will aim to prove these assertions. By the time I conclude this essay, it should be clear that the Iraq War — like Vietnam, Korea, and others before — is unconstitutional. 

I’ll leave aside the fact that the “Authorization for Use of Military Force Against Iraq Resolution of 2002″ ties American action to the United Nations — an international body with no sovereign power over us, thus giving the resolution dubious constitutionality right out of the gate. Instead, my focus will be on what the resolution actually accomplishes.

The resolution has much in the way of gnashing of teeth against the then-regime of Saddam Hussein, his flaunting of international law, and his purported threat to the United States. It affirms (which shouldn’t be necessary) the president’s responsibility to defend America — which he naturally has even without prior congressional approval — if we are attacked or in true eminent danger. But that is a long ways from a pre-emptive, sustained, offensive action against another sovereign nation.

The key section is Section 3, and especially subsections (a) and (b), which I abbreviate here:

SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) AUTHORIZATION- The President is authorized 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 of the United States against the continuing threat posed by Iraq; and

(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.

That certainly sounds like a declaration of war, or at least a suitable substitute. But look more carefully: “The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate….” (emphasis added both here and below)

Clearly, war has not been declared by Congress. They have merely kicked the ball down the field and said, “You decide, Mr. President. We won’t stand in your way.”

As if to emphasize this point, subsection (b) is titled, with all-caps formatting, “PRESIDENTIAL DETERMINATION.” Again, the president is given the prerogative of making war. The use of force is “his determination,” this subsection says, with the caveat that the president must explain that determination to “the Speaker of the House of Representatives and the President pro tempore of the Senate” within 48 hours of starting the war.

Is this not exactly what the Founders wanted to prevent? Congress has abdicated its constitutional responsibility and handed the president powers known to the old English monarch that we as a nation declared our independence from. These are not the powers of the American president under the Constitution.

Compare this resolution with actual Declarations of War in American history:

• Congressional Declaration of War on Japan, December 8, 1941 -
  Therefore be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,
  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. (emphases mine)

Note the difference here: The determination to go to war is not left up to the president. Rather, he is “directed” to employ the “entire forces of the United States” against our Japanese foe. The purpose and end is clearly defined, too: “to bring the conflict to a successful termination.” And rather then shirk responsibility, our representatives laid it clearly upon their own shoulders, ensuring the unity of the nation behind our war effort: “all of the resources of the country are hereby pledged by the Congress of the United States.”

Far from an isolated example, this is the normal form of a congressional Declaration of War:

• US Declaration of War against Germany, December 11, 1941-
  [W]ar between the United States and the Government of Germany … is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the government to carry on war against the Government of Germany; 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.

The president may — and usually does — request congressional authorization to engage in offensive war, as President Franklin D. Roosevelt did on this occasion: “I therefore request the Congress to recognize a state of war between the United States and Germany, and between the United States and Italy.”

Such was the case in World War I, where Congress responded in similar fashion:

• Formal U.S. Declaration of War with Germany, 6 April 1917 -
  [W]ar between the United States and the Imperial German Government … 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.

Very similar language is found in all of our declarations of war, from 1812 onward.

In summary, the resolution authorizing the use of force in Iraq placed the determination for making war with the president. As shown above, this flies in the face of the Constitution and the clear intent of the Founders.  In effect, Congress punted their constitutional responsibility and, further, failed to pledge “all of the resources of the country necessary … to bring the conflict (if and when the president decided to launch a war) to a successful termination.”

Instead, the United States Constitution, as we see in the words of the Framers and in our practice up through World War II, requires that Congress direct the president whether to make war, and not to defer to his discretion. And then it requires Congress to provide the resources necessary “to bring the (resulting) conflict to a successful termination” and let the president prosecute the war to that effect.

Beginning with the Korean War, we’ve gotten it exactly backward ever since. It is no coincidence, in my opinion, that we have not won a major conflict during this time, and that our current adventure in Iraq is going so awry. (We’ve won limited retaliatory skirmishes and short missions with fixed and clearly-defined objectives, yes, but nothing on a grander scale.) Many of these conflicts were unwise anyway, but following the Constitution would have at least yielded much different — and more satisfactory — results.

The Iraq war resolution was not a sufficient substitute for a Declaration of War under the Constitution. The war, then, is unconstitutional. Therefore, I believe it is also doomed.

© 2004-2008 Eric F. Langborgh