- The Washington Times - Tuesday, August 20, 2002

Detractors of President Bush's contemplated war against Iraq insist a congressional declaration of war is necessary for its constitutionality. Since time for congressional deliberation before military action is feasible, the excuse for unilateral authority where time is of the essence is unavailing.
Thus, some urge, Congress should impeach the president if he incinerates Saddam Hussein's villainous regime feasting on weapons of mass destruction without a congressionally declared war; otherwise, Congress will forever be excluded from decisions to war or not to war.
The constitutional criticism is nontrivial, but unconvincing.
Constitutional history, practice and prudence would justify Mr. Bush's unilateral initiation of war against Iraq without an immediate provocation akin to Pearl Harbor.
The Founding Fathers held no pronounced prejudice against executive declarations of war. It was not an indictment against King George III in the Declaration of Independence. The Articles of Confederation, which preceded the United States Constitution, empowered a legislative-executive body to declare war.
John Locke's Second Treatise of Government, Chapter 14, "Of Prerogative," virtual gospel for our constitutional architects, argued in favor of extraconstitutional executive powers in national security emergencies. But if the executive contrived such a justification to aggrandize power, according to Locke, he might be removed or otherwise sanctioned by the people or the legislature.
Following Locke's theory of executive prerogative in an address to Congress on July 4, 1861, President Abraham Lincoln justified his extraconstitutional actions at the outset of the Civil War, including the unilateral suspension of the writ of habeas corpus, as follows: "Are all the laws but one to go unexecuted, and the government itself go to pieces, lest that one be violated? [And if the government were overthrown] would not the official oath be broken."
During the Constitutional Convention, early drafts entrusted warmaking to Congress. James Madison and Elbridge Gerry then successfully moved to substitute "declare" for "make" war; leaving to the Executive the power to repel sudden invasions.
The Convention delegates, however, were skeptical of handcuffing national security powers with legally enforceable constitutional constraints. Alexander Hamilton wrote in Federalist 23 that, "[War] powers ought to exist without limitation, because it is impossible to foresee or to define the extent and variety of national exigencies, and the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which care it is committed."
Hamilton further elaborated in Federalist 25 that any policy bearing on national security "contrary to the natural and experienced course of human affairs, defeats itself" because self-preservation is the inescapable rule of life.
On the other hand, the Founding Fathers aimed to deny the executive the power to initiate war. Madison wrote to Thomas Jefferson in 1798: "The Constitution supposes, what the history of all govts demonstrates, that the ex. is the branch of power most interested in war, & most prone to it. It has accordingly with studied care vested the question of war in the legisl."
And Hamilton himself in Federalist 69 disputed that an American president would enjoy the war declaring power of British kings; that power would be lodged with Congress, Hamilton avowed.
Constitutional practice, however, has overwhelmed the specific expectations of Madison and Hamilton. During its 1973 hearings on the War Powers Resolution, the House Foreign Affairs Subcommittee on National Security Policy and Scientific Developments listed 199 instances of United States military hostilities without a declaration of war (of which there have been but five, and none since World War II). Only 81 of the 199 even arguably rested on prior legislative authority. The remaining 118 cases included President Franklin Roosevelt's warring against Nazi submarines before Pearl Harbor, and President John F. Kennedy's naval blockade of Cuba during the Cuban Missile Crisis.
Constitutional practice and evolution have thus superannuated the congressional power to declare war. But the result seems untroublesome.
The power of the purse still empowers Congress to thwart or terminate war making by the president. In 1973, for instance, Congress terminated all funds for American combat activities in Cambodia and Laos after Aug. 15 of that year. That precedent discredits the claim that voting to cut appropriations while our troops are militarily engaged is politically prohibitive. And Congress may impeach, convict, and remove a president for abusing warmaking powers.
Moreover, the reasons at our constitutional birth for disfavoring war initiation by the executive have lapsed. Then, the popular vote and public opinion held little sway in presidential elections. Today, the president is as much a creature of the common man as are senators and representatives.
Further, the two-term limit on the presidency enshrined in the 22nd Amendment has arrested executive inclinations to exploit war in hopes of permanency in the White House.
Finally, requiring a congressional declaration of war before President Bush invades Iraq smacks of imprudence. Tactical surprise, like our Overlord landings in World War II, would be confounded. And the leaking of classified information by Congress that could endanger our soldiers would be as certain as the Archimedes principle.

Bruce Fein is founding partner of Fein & Fein law firm in Washington.

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