Duke Scholars: Constitution Requires Congressional Approval To Wage War On Iraq
Friday, August 30, 2002
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The president has the primary responsibility for conducting U.S. foreign affairs, up to and including the use of military force, said Duke law professor H. Jefferson Powell, author of "The President's Authority Over Foreign Affairs" (Carolina Academic Press, 2002). Congress, through its powers over spending, the armed services and declaring war, has the authority to prohibit the use of U.S. armed forces in any given situation.
"But at some point, the use of military force becomes so massive and so destructive -- potentially to our forces, our country and those we fight -- that the president has a constitutional obligation to view the conflict as 'war' within the meaning of the Declaration of War clause," said Powell, who has served as a deputy assistant attorney general and as Principal Deputy Solicitor General in the U.S. Department of Justice. "At that point, he has a constitutional obligation to seek congressional approval or refrain from the proposed operation."
The Constitution requires that the president not presume to make war merely on his own assessment and unilateral order, said Duke law professor William Van Alstyne, who has appeared in numerous hearings before Senate and House committees to address legislation affecting the separation of powers, war powers and constitutional amendments.
"If he believes we cannot any longer, by measures short of war, now avoid the unacceptable risk of weapons of mass destruction from developing under a repressive Iraq regime, it is by all means his prerogative and his responsibility as president candidly, even bluntly, to say so -- to Congress," Van Alstyne said. If Congress is not persuaded by the president's argument, "the president may not then proceed upon a deliberate course of war."
The president's obligation to make a good-faith distinction between "military action" and "war" is constitutionally binding, Powell said.
"I am deeply troubled by suggestions from the Bush administration that it is contemplating as one possibility an operation that would almost certainly have to be seen as 'war' in the constitutional sense, yet does not acknowledge that such a choice would need Congressional approval," Powell said. "My concern is that the administration is giving some indication that it does not appreciate the president's duty to make a judgment about his authority, not just a decision about what he thinks is the best policy."
Neither the 1991 Gulf resolution nor the post Sept. 11 anti-terrorism resolution amount to congressional authorization, the two law professors said.
"The 1991 resolution arguably addressed a specific situation no longer at issue and probably shouldn't be construed to amount to a blank check, no matter the passage of time or change of circumstances," Powell said.
And though Congress authorized the president to use U.S. armed forces against those involved in the Sept. 11 terrorist attacks or harboring those who were, evidence of such a link to Iraq has yet to be revealed to the U.S. public, Van Alstyne said.
"The authorization is not an 'open-ended' one to authorize the use of military power against any nations, organizations, or person whom the president identifies as proper targets insofar as it would merely help in some general sense to 'prevent' future terroristic attacks by such nations, organizations or persons," he said.
Powell can be reached for additional comment until mid-afternoon Friday at (919) 613-7098. Van Alstyne can be reached at (919) 613-7048.
