Congress and The Courts Must Recommit To The Legislative Branch's Sole Authority To Declare War.

by Mario M. Cuomo

Most Americans want the war in Iraq ended, but it continues and Americans are killed, mutilated or wounded every day, as the Democratic majorities in Congress struggle to produce legislation that will take our forces out of harm's way. Meanwhile, President Bush continues to insist that as commander in chief, he has the constitutional power to go to war and decide when to end it, unilaterally. At the same time, another possible disaster emerges from the shadows: Bush appears to be considering a military assault on Iran, again apparently without Congress declaring war first.

How did we get to this point and what, if anything, can we do now?

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.

What can be done now?

First, Democrats should make clear that it is the president who is keeping the war in Iraq from ending. Even if Congress were able to pass a veto-proof bill with respect to withdrawal, the president would resist enforcement of the bill, insisting that as commander in chief, he is immune from Congress' decision. That would raise a constitutional issue for the courts.

But judging by the courts' history concerning constitutional war powers, including decisions involving the Iraq war in the U.S. 1st Circuit Court of Appeals in Massachusetts, the judiciary would, in all probability, choose not to intervene, claiming that the disagreement between the president and Congress is a political question.

However, the political-question thesis is nowhere referred to in the Constitution, and it denies the people the protection of the Constitution in dealing with perhaps the most serious question the nation has to face: "Should we go to war?" That position should be challenged as an abdication of constitutional duty by the courts, but the sad truth is that the current conservative-dominated Supreme Court would probably support our current conservative president. As a practical matter, that means only the president can end this waror change our strategy in Iraq.

Even if it is too late for Congress to remedy its failure to comply with the Constitution with respect to Iraq, at the very least our candidates for president and our congressional leaders should assure us that they will not allow this lapse to result in further unilateral acts of war -- against Iran, Pakistan or any other nation -- by this president or any other. Our leaders must make it clear that in the future, Congress will insist on compliance with Article I, Section 8 for any military action that is not fairly deemed an unexpected emergency.

It is frightening that our government has permitted this fundamental and costly constitutional transgression to persist for more than four years.

We must do everything we can to end the war in Iraq and avoid a new tragedy abroad by recommitting to strict adherence to the rule of law and to the Constitution by the president, Congress and the courts -- especially with respect to war powers.

Mario M. Cuomo, the governor of New York from 1983 to 1995, now practices law in New York.
© 2007 The Los Angeles Times