Published on
by
The New York Times

How Congress Forgot Its Own Strength

by
Mario M. Cuomo

SENATORS Jim Webb of Virginia and Hillary Clinton of New York are right to demand that the president go before Congress to ask for a "declaration of war" before proceeding with an attack against Iran or any other nation. But there is no need for this demand to be put into law, as the two Democrats and their colleagues are seeking to do, any more than there is need for legislation to guarantee our right of free speech or anything else protected by the Constitution.

Article I, Section 8 already provides that only Congress has the power to declare war. Perhaps the founders' greatest concern in writing the Constitution was that they might unintentionally create a president who was too much like the British monarch, whom they despised. They expressed that concern in part by assuring that the president would not have the power to declare war.

Because the Constitution cannot be amended by persistent evasion, this mandate was neither erased nor modified by the actions or inactions of timid Congresses that allowed overeager presidents to start wars in Vietnam and elsewhere without making a declaration.

Indeed, asking for more legislation now would imply that the Constitution doesn't mean what it already says.

It would repeat the mistake made by Congress in 2002 when it tried to delegate to President Bush the non-delegable power that the founders chose to give to the legislative branch. Congress's eagerness to shed the burden making the decision by passing resolutions that purportedly "authorized" the president to decide whether to start a war denied the nation the careful Congressional inquiry intended by the Constitution.

SCROLL TO CONTINUE WITH CONTENT

The media landscape is changing fast

Our news team is changing too as we work hard to bring you the news that matters most.

Change is coming. And we've got it covered.

Please donate to our 2019 Mid-Year Campaign today.

That deliberation might have revealed Iraq's lack of complicity with Al Qaeda and the nonexistence of the country's alleged cache of nuclear weapons. The members of Congress would have had to vote specifically on going to war (instead of on allowing the president to make that decision), which would have assured closer scrutiny than they actually gave the question.

Proceeding with the proposed legislation would also create the likelihood of still another failed Democratic legislative effort, because it would probably not get enough votes from Republicans to override a veto. Such a failure might have some political value as another reminder of the Republicans' eagerness for war, but it would also remind voters that the Democrats have not been as effective as they promised in 2006 they would be.

Congress's refusal to comply with Article I, Section 8 of the Constitution has led to a catastrophic aftermath. Such a tragedy should never be allowed to happen again. Rather than enact new legislation that would create constitutional ambiguity, the Democratic leadership in Congress should assert its strength by simply announcing it will allow no "resolutions" or "authorizations" purporting to delegate to the president Congress's constitutional power to declare war against any other nation. Nor will there be any new war without Congress's solemn deliberation and declaration of war.

The Democrats should go still further and announce that no money will be appropriated for any military action against another nation without a proper declaration of war. And this should be the position of the Democratic presidential candidates as well. How else can they make the case that they are less likely than President Bush to wage dangerous, improvident wars?

Mario M. Cuomo, the governor of New York from 1983 to 1995, practices law with Willkie Farr & Gallagher.

Copyright 2007 The New York Times Company

We want a more open and sharing world.

That's why our content is free. Free to read. Free to republish. Free to share. With no advertising. No paywalls. No selling of your data. How? Nonprofit. Independent. Reader-supported.

All of our original content is published under Creative Commons—allowing (and encouraging) our articles to be republished freely anywhere. In addition to the traffic and reach our content generates on our site, the multiplying impact of our work is huge and growing as our articles flourish across the Internet and are republished by other large and small online and print outlets around the world.

Several times a year we run brief campaigns to ask our readers to pitch in—and thousands of small donations fund our newsroom and allow us to continue publishing. Our 2019 Mid-Year Campaign is underway. Can you help? We can't do it without you.

Please select a donation method:



Share This Article