“Resolved, Presidents Have Usurped the War Power That
Rightfully Belongs to Congress.”
Richard Pious
Position: CON
Constitutional Debate
Constitutional Debate
As Kassop indicated, the framers refined the war powers to assign certain
responsibilities to each branch.
“Repel Sudden Attacks…”
Though Congress “declares” (rather than “makes”), the president is
authurized to “repel Sudden Attacks…”
Constitutional Debate
Pious: Argument
The intention of the framers is therefore clear: “the power to ‘make’ war is
not limited to Congress. It is a responsibility shared by Congress and the
President.
Otherwise Constitution is Unclear
Nothing else, in Pious’ opinion, is certain. Constitutional Language is not
specific to resolve jurisdictional disputes.
History is a Better Judge
War Powers: Living Constitution
History of War Powers
Early Presidents: Used Powers Quite Freely
Lincoln: Informed Congress After the Fact
Congress authorized expanded presidential
being called into special session.
retroactively, after
Court: Declaration of War No Required In Civil Wars
War Powers: Living Constitution
War Powers: Living Constitution
Police Powers:
Began with Cleveland, then Teddy Roosevelt, expanded by Truman.
War Powers: Living Constitution
Presidents and Cold War
Two trends:
1) Congressional Resolution Supporting Presidents
2) Congressional Abdication of Authority
Why No Declarations of War?
War Powers: Living Constitution
Presidents and Cold War
Examples: (Resolutions)
Cuban Missile Crisis (1962)
Gulf of Tonkin Resolution (1964)
Gulf War (1991)
Iraq War (2003)
Examples: (Abdication)
Korean War (1950)
National Commitment Resolution (1969)
War Powers and the Judiciary
War Powers and the Judiciary
Courts has for the most part resisted injecting itself between the president
and Congress.
Vietnam Cases:
Luftig v. McNamara (1967)
Draftee resisted on grounds that Congress had not declared war. Court
support presidential auth.
Berk v. Laird (1970)
President had war powers in absence of declaration of war, but such
authority depended on joint action with Congress.
Failure of the War Powers Resolution
Failure of the War Powers Resolution
Congress responded to an permissive court by passing the War Powers
Resolution.
Presidential Response
Every president Nixon has questioned its Constitutionality.
Failure of the War Powers Resolution
War Powers and Judiciary: Dodge Issue
Cases:
Dellum v. Bush (1990)
Several members of Congress sued to stop Bush from using force to
expel Iraq from Kuwait. Court found use of presidential war powers had
become too expansive, but then refused to pass judgment, deferring
instead to Congress to decide.
If Congress did not Act, the Courts would not Act.
Failure of the War Powers Resolution
Clinton and War Powers
Clinton largely ignored Congress when planning military act first in Haiti,
then in Serbia.
Case:
Campbell v. Clinton (1999)
Court that members of Congress who challenged Presidential War
Powers lacked standing, since Congress had not clearly expressed its will.
Failure of the War Powers Resolution
Bush and Iraq
Cited Congressional 2002 resolution supporting the use of force against, and
1998 policy of “Regime Change” as “joint” authorization to invade Iraq
in March 2003.
Bush and International Mandate
Bush claimed an International Mandate, but struggled to get in passed
through the UN.
Case:
Doe v. Bush (2003)
Court again refused to rule on whether a president had overreached,
citing evidence of joint authorization.
Conclusion
Conclusion:
The problem has not been presidential war powers, but the failure of
Congress (or the courts) to counteract presidential ambitions.