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July 08, 2008

War Powers and the Iraq War

Baldilocks spotted the news this morning that foolish former government officials are proposing to further restrict the president's power to wage war. They acknowledge that the War Powers Act is largely unconstitutional, but then suggest that the an equally unconstitutional replacement be created. A "consultative process" must be in place for approving or disapproving "significant armed conflict" because (they claim) such a process does not already exist.

Oh, but it does. Article I, sec. 8 gives to Congress the power to declare war and Article II, sec. 2 gives to the President the power to wage it. There's your consultative process. Baldilocks skips the pretext and goes right to the real issue here: the Iraq War and the Democrats' inability to move legislation to stop it.

What was the purpose of H.J. Res. 114 (Authorization for Use of Military Force Against Iraq Resolution of 2002)? Did the president require anything further?
After taking control of Congress in January 2007, Democrats tried to cap force levels and set a timetable for withdrawals. They lacked a veto-proof majority to put the restrictions into law, and the White House argued that such legislation would have violated the Constitution by infringing upon the president's role as commander in chief to protect the nation. Democrats disagreed, contending there was ample precedent.

The one surefire way for Congress to have ended the war was to cut off money for combat operations a step most Democrats weren't willing to make because they feared doing so would have hurt troops in harms' way, or at least be perceived by voters that way.

The democrats didn't have enough votes to do what they wanted to do. And?

Perhaps I'm missing something.

She's not missing anything. Congress has the power to halt the war at any time. It just hasn't meaningfully exercised that power. Since they are so helpless, many Democrats and even many Republicans, including Ron Paul, Alberto Gonzales, and James Baker, have attempted to cast doubt on the legitimacy of the Iraq War by claiming that it is not a "proper" war. They are, each and every one of them, constitutionally illiterate on that topic. As Baldilocks points out, the AUMF is enough to declare war and periodic funding is enough to continue it. There is no need for the legislation to contain the "magic words" Declaration of War.

If you're interested, my discussion of AUMFs and declarations of war from last year is in three parts: Part 1, Part 2, and Part 3.

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posted by Gabriel Malor at 11:31 AM

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