A recent OpEd by Mario Cuomo in the Los Angeles Times, What The Constitution Says About Iraq, gave some surprisingly good analysis of how the Iraq war is a direct violation of the constitution. Here’s a few tidbits:
The war happened because when Bush first indicated his intention to go to war against Iraq, Congress refused to insist on enforcement of Article I, Section 8 of the Constitution. For more than 200 years, this article has spelled out that Congress — not the president — shall have “the power to declare war.”
Because the Constitution cannot be amended by persistent evasion, this constitutional mandate was not erased by the actions of timid Congresses since World War II that allowed eager presidents to start wars in Vietnam and elsewhere without a “declaration” by Congress.
Nor were the feeble, post-factum congressional resolutions of support of the Iraq invasion — in 2001 and 2002 — adequate substitutes for the formal declaration of war demanded by the founding fathers.
This is the essence of the unconstitutionality of the war in Iraq – and of every war American politicians have waged since World War II – the last time there was a Constitutionally-mandated declaration of war.
The Constitution was written under the principle of “positive grant.” This means that the federal government is authorized to exercise only those powers which are specifically listed in the Constitution. This was so important to the founding fathers that they codified it in law as the Tenth Amendment:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
As Cuomo made clear, Article I, Section 8 of states that Congress shall have the “power to declare war.” Nowhere in the Constitution is the Congress given authority to transfer that power to any other person or branch. And, nowhere is the president given the power to declare war either.
AUMF. AN UNCONSTITUTIONAL TRANSFER
In 2002, Congress passed the “Authorization to Use Military Force” (AUMF). Although Congress claimed that this legislation “satisfied” the requirements of Article I, Section 8, it did not.
The AUMF was not a declaration of war. It authorized the president to make that decision on his discretion. Thus, the AUMF was a transfer of the war-declaring powers to the excecutive branch – which is clearly not authorized by the Constitution.
In short, what Congress told the president with the passing of the AUMF was “You decide when or if we go to war with Iraq. Just let us know shortly after.”
Therefore, every single member of Congress who voted to transfer this power to the president violated the Constitution. And, the president violated the Constitution by not refusing this illegal transfer of power.
It’s pretty simple. When one branch breaks the law, it’s up to the others to “check” that branch. But, unfortunately, all three branches have been ignoring the plain English of the Constitution for decades.
NO MATTER WHAT
As far as declaring war, James Madison, the “father of the Constitution,” summed it up best:
â€œThe executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.â€
It’s in plain English. No right. In any case.
That even includes a situation where the Congress violates the Constitution and transfers its war-declaring powers to the president.
In any case.
No matter what.