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.

POSITIVE GRANT

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:

“The executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.”

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.

Period.

“Not all the treasures of the world, so far as I believe, could have induced me to support an offensive war, for I think it murder.” — Thomas Paine

One of the many consequences of our current political climate, in which war seems to be almost endless, is that people are often driven to ask fundamental questions about the powers of war.

We must keep in mind that the Constitution was written under what’s referred to as “positive grant.” In short, this means that the only powers that the federal government can exercise are those delegated to it in the Constitution. Many of the founders were so concerned about this issue that they wrote the Tenth Amendment to put the concept of positive grant into writing.

“The powers not delegated to the United States, by the Constitution, nor prohibited to it by the States, are reserved to the States, respectively, or to the People.”

It is here clearly stated that the United States Constitution rests on a strict enumeration of federal powers; if a power was not specifically delegated by the People, the federal government simply cannot do it.

Ever since the Korean War, Article II, Section 2 of the Constitution has been regularly cited as justification for the President to act with a seemingly free reign in the realm of foreign policy – including the initiation of foreign wars. But, it is Article I, Section 8 of the Constitution that lists the power to declare war, and this power is placed solely in the hands of Congress.

Article II, Section 2, on the other hand, refers to the President as the “commander-in-chief of the army and navy of the United States.” What the founders meant by this clause was that once war was declared, it would then be the responsibility of the President, as the commander-in-chief, to direct the war.

Alexander Hamilton supported this when he said that the President, while lacking the power to declare war, would have “the direction of war when authorized.” Thus, under the Constitution, the President, acting without a Congressional declaration of war, is authorized only to repel invasion and sudden attacks.

Pre-emptive strikes and undeclared offensive military expeditions are not delegated to the executive branch in the Constitution, and are, therefore, unlawful. Thomas Jefferson stated this quite eloquently when, in 1801, he said that, as President, he was “unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.”

In Federalist #69, Alexander Hamilton explained that the President’s authority:

“would be nominally the same with that of the King of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy; while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which by the constitution under consideration would appertain to the legislature.”

James Madison warned us that the power of declaring war must be kept away from the executive branch when he wrote to Thomas Jefferson:

“The constitution supposes, what the history of all governments demonstrates, that the executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the legislature.”

TRANSFER OF POWER

For the last sixty-plus years, our nation has been involved in numerous conflicts and wars. Since World War II, our military has sustained nearly 100,000 deaths and over a quarter million wounded.

For over six decades, millions and millions of Americans have been dragged into battle, without a declaration of war from the representatives of the People, and with essentially no clear victories.

What has this led to? In matters of peace and war, Presidential rule has completely replaced the rule of law in the United States.

The Congress has relinquished its Constitutionally-mandated responsibility to declare war over and over, and, every time, the President has not done his duty in this situation, either. When one branch of government is in violation of the Constitution, it’s the role of one or both of the other branches to “check” it.

Thus, when the Congress illegally transfers the power to declare war to the President, it is the President’s duty to refuse that transfer of power. The president’s job would be to explain to the American people what was done, why it was unconstitutional, and demand that Congress live up to its oath. Unfortunately, the last 60+ years has not produced a single president who has refused such an unconstitutional transfer of power.

PERPETUAL WARFARE

The last time Congress declared war was on December 11, 1941; against Germany, in response to its formal declaration of war against the United States. This resolution was quickly accomplished with a statement that was well-under one page in length; yet it still clearly delineated who the enemy was, and what was to be done. Three days previously, and one day after being attacked at Pearl Harbor, Congress declared war on Japan with a similar clarity. Both actions resulted in a clear-cut military victory.

But, since then, things have been quite different.

President Truman gave us the Korean War without Congressional Declaration, and Presidents Kennedy, Johnson, and Nixon did the same in Vietnam. President Bush brought us an undeclared war in Iraq in 1991, which President Clinton continued with sanctions and bombing raids throughout his two terms.

In 1999, he also engaged us in a war with Yugoslavia without a declaration from Congress. In September 2001, Congress transferred to President Bush the power to fight whomever he determined aided the September 11th attacks, or harbored the culprits; its resolution did not even mention Afghanistan, although war has been waged by our military in that country ever since. And, in October 2002, Congress let Mr. Bush alone decide whether or not to attack Iraq; and, as we know he responded with a full-scale invasion.

Powerful people continually tell us that if Truman, Johnson, Clinton, et al, could initiate war without a Congressional declaration, then any current or future President could do likewise. Precedent now supposedly trumps the rule of law. But, the Constitution remains valid even after presidents violate it.

NOT JUST THE LAW, A GOOD IDEA TOO

There are many reasons why following the Constitution is not only within the law, but a good idea too.

The first goal of having Congress declare war was to ensure that the representatives of the states and the people would be the ones discussing matters of peace and war. This would, theoretically, create a greater climate of responsibility, and it seems that it may have done so to some degree. Since this constitutional clause has been ignored, the number and length of American wars has increased while the “success” rate has drastically decreased.

A Congressional declaration of war limits Presidential powers, narrows the focus of the action, and implies, or clearly stipulates a precise end-point to the conflict. When left in the hands of just one person, we can be assured that there is only one opinion on war. Conversely, the more people there are involved in making that decision, the greater the chance that the country will not get involved in costly, deadly and worthless wars.

Thus, as with so many other issues in government, the proper direction for the future is to demand that elected politicians uphold their oath and follow the Constitution.