Ron Paul says that Congress never declared war on Iraq, but then I'm having to ask what the whole "authorization to go to war with Iraq" was all about. How is what Congress did different or illegal, as opposed to declaring outright war?
Good question. Whether it is legal depends upon whether you believe something has to comply with the Supreme Law of the Land to be "legal". It was "legal" in the sense that it was based on a law that was enacted by Congress (the War Powers Act) but this is a law which I believe is not, itself, legal since it conflicts with the Supreme Law or the Constitution.
The basic crux of why the authorization is "Unconstitutional" is in the fact that it transferred the discretion for deciding the propriety of war to the President.
In past declarations such as WWII, the language very specifically said two things:
1) "A state of war with _____ exists"
2) "the President is authorized AND DIRECTED to use the military forces..."
These declarations were acts of Congress using their SOLE discretion to determine the propriety of, and declare a state of war. After these declarations, the President was not free to NOT undertake the war, he was bound as the commander in chief to act. The only discretion he had at the point was how best to undertake the war, not WHETHER to do it.
If you look at the text of the Iraq "authorization" it is very clear that this discretion is being turned over from the Congress to the President. It uses the language, in the following passage:
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.
(b) PRESIDENTIAL DETERMINATION- In connection with the exercise of the authority granted in subsection (a) to use force the President shall, prior to such exercise or as soon thereafter as may be feasible, but no later than 48 hours after exercising such authority, make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination that
(1) reliance by the United States on further diplomatic or other peaceful means alone either (A) will not adequately protect the national security of the United States against the continuing threat posed by Iraq or (B) is not likely to lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq; and
Several things are clear from this language.
1) The President was free, and even encouraged, to continue non-military remedies after the resolution was passed. This means it is NOT a declaration of war.
2) The decision over whether to use military force was within the Presidents' discretion
"as he determines to be necessary" and he only needed notify Congress of his decision (which should have been theirs) and not even necessary notify them before acting!
This may seem like "hair-splitting" to many, but in the world of laws these sort of distinctions make all the difference. Very often the constitutionality of an issue turns on a single word or phrase.
The authorization was based on the 1973 War Powers Act, which is bad in many respects and the Constitutionality of which has never been tested (its about time). In some respects the war powers act is unconstitutional because it pretends to give an amount of oversight and micro-management to the Congress over operations that IMO is Unconstitutional. It is also Unconstituitonal in the other direction by allowing Congress to transfer discretion to the President, as in the Iraq resolution.
However, even the most determined Neo-Con should be able to at the very least see the wisdom in this:
Clearly, the authorization was ill-advised, and
the country would have been much better served by a true declaration. That way, the consensus of the people would have been behind the decision, and the members of Congress would not be able to play political games by characterizing Iraq as "the President's war". Republicans should at least be able to see the wisdom in this. If it had been done Constituitonally, the Administration and consequently the Republican party would not be the "bird cage liner" for all of the blame and discontent.
I think its time we rethink the War Powers Act, even if you believe its Constitutional, because of its demonstrated negative results in the way that it allows wars to be undertaken. The wisdom of separating the powers WAGING war from the power to DECLARE or DETERMINE war was obvious to the founders, who lived under a system in which teh British monarch had BOTH the powers of waging and declaring war within his power. They wanted to avoid the problems that arose from that. It should be even more obvious in the aftermath of the Iraq authorization. Like Madison said:
The Constitution expressly and exclusively vests in the Legislature the power of declaring a state of war [and] the power of raising armies. A delegation of such powers [to the president] would have struck, not only at the fabric of our Constitution, but at the foundation of all well organized and well checked governments. The separation of the power of declaring war from that of conducting it, is wisely contrived to exclude the danger of its being declared for the sake of its being conducted.”
