The idea that war-making power is vested in the Congress has become a shameful joke that mocks the original intent of the Constitution. Practically, war-making has originated in the executive, who would then come up with a compelling story to get the Congress to cede its Constitutional power to make war. Further complicating the Founders' quaint premise that war-making is too serious to be entrusted to one person is the development of world governmental authority in the U.N.
I want to look at how each President Bush waged war in order to get clear on how war-making could be enacted in a way that's constitutionally, procedurally, ethically legitimate. HW went to the UN before going to Congress to push Iraq out of Kuwait, whereas W went to the Congress before going to the UN in order to invade Iraq. I believe both were wrong in terms of policy, but who was right in terms of the Constitution and international law? Y, Y, you may ask....
Article I, Section 8:
The Congress shall have Power To. . .
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; . . .
Al Gore gave a brilliant courageous speech on September 23, 2002 that enumerated how HW and W differed in their war-making. Definitely worth a reread in full, but here's one of many thoughtful considerations:
Next, in 1991, the first President Bush patiently and skillfully put together a broad international coalition. His task was easier than the one that confronts this President Bush, in part because Saddam had invaded another country. For whatever reason, every Arab nation, except Jordan - of course Jordan was in Iraq's shadow next door - but every other Arab nation supported our military efforts, was a part of the international coalition, and some of them supplied troops. Our allies in Asia and Europe supported the coalition without exception. This year by contrast, many of our allies in Europe and Asia are thus far openly opposed to what President Bush is doing, and the few who do support us have conditioned their support - most of them - on the passage of a new U.N. resolution.
Now at the time, the fall of 1990, I remember thinking, "That bastard's going to go the UN first and do an end-run around Congress." Though constitutionally questionable, HW was successful in his UN vote. Or maybe it wasn't constitutionally questionable, maybe Congress effectviely ceded its power to declare war to the UN when it signed the UN Charter. HW's process seemed to argue just this point and it fit his New World Order internationalist perspective.
ON November 29, 1990, HW got his force authorization if Iraq didn't leave Kuwait by January 15, 1991 from the UN Security Council, 12-2 (nays: Cuba and Yemen) with China abstaining. Then the Congress relied on the UN Resolutions to pass S.J. Res 2 by a margin of 52-47 in the Senate. The House's version passed 250-183 on the same day, January 12, 1991. On January 14, Congressional action became Public Law No: 102-1 and the bombing began.
W's war-making was considerably sketchier, but he did start with the Congress as opposed to the UN. Compared to his daddy, W had it easy in Congress and force authorization passed, 296-133 in the House and 77-23 in the Senate.
It's worth returning to Gore's 2002 speech to underline the contexts:
Fifth, back in 1991, President George H. W. Bush purposely waited until after the mid-term elections of 1990 in order to push for a vote at the beginning of the new Congress in January of 1991. President George W. Bush, by contrast, is pushing for a vote in this Congress immediately before the election. That in itself is not inherently wrong, but I believe that puts a burden on the shoulders of President Bush to dispel the doubts many have expressed about the role that politics might be playing in the calculations of some in the administration.
It's also worth noting that the Senate's version passed exactly one year and one month after September 11, 2001.
Even with the Congress behind him, W could not get any force authorization out of the UN, a fact that makes it very easy for the words "illegal invasion" to trip off the tongue. Though Bush got UN Resolution 1441 through the Security Council in November of 2002, 1441 did not authorize the use of force and the W's disastrous invasion has the added bonus of having no figleaf of legitimacy.
So there's a bit of a "what if" here. If W had gotten UN authorization after Congressional authorization, would that have been the most Constitutional path to war?
There's also a practical political consideration within this debate as well. A guy like Gore can point with pride to the fact that he voted for Desert Storm but took a stand against W's invasion. Kerry, on the other hand, added to his "blowing in the wind" image by voting against Desert Storm and for W's invasion. Obviously, HW's war-making was ultimately more successful so the procedure he followed to get there looks better in retrospect. But do we really want to argue that the President should go to the Congress after getting the UN's okay? Frankly this position sticks in my craw and offends the same sovereignty principles I use to argue against GATT, NAFTA, WTO and CAFTA.
So what's the right way to figure out this issue of Presidential war-making? W ran roughshod over any pretense to legitimacy when he invaded Iraq. With presidential legitimacy so broken, now's the perfect time to consider what legitimacy would look like. Because, you never know, we may yet again get a sane President in our lifetimes.