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Declaring War By: Henry Mark Holzer
FrontPageMagazine.com | Thursday, September 05, 2002


The question rages everywhere: Must the President have the explicit consent of Congress — a formal declaration of war — before he attacks Iraq, disposes of Saddam Hussein, and fosters a change in regime?

Let’s put aside the political poseurs, strutting and yapping for their own partisan purposes, and focus instead on the legal question at issue.

The architecture of the Constitution reveals over and over again the Framers’ genius in creating a system of check and balances. Nowhere is that design more evident, or more important, than in the relationship between Article I, Section 8 (“The Congress shall have power . . . To declare [not “make”] War”) and Article II, Section 2 (“The President shall be Commander in Chief of the Army and Navy of the United States ....”).

One would think that in the ongoing struggle for power between the National Legislature and the Chief Executive, the seemingly shared power over war would have produced serious conflicts between Congress and the President. Not so. In nearly two-hundred years, from about 1798 to late last century, presidents have shipped — at least one-hundred-thirty times — material and troops abroad absent Congressional approval.

The last time Congress formally declared war was in December 1941, following the attack on Pearl Harbor more than a half-century ago.

Yet our country has fought three major conflicts since then (not counting Eisenhower’s actions in the Formosa Straits and Suez, Kennedy’s Cuba quarantine, Johnson’s troop deployment to Santo Domingo, Reagan’s attack on Grenada, Bush’s ousting of Noriega in Panama.) The Korean “police action” lasted from 1950 to 1953, and cost some 50,000 American lives. America troops were committed en masse to South Vietnam’s “counterinsurgency” beginning in 1964, and some 58,000 more men died before we left in 1973. In 1991, we semi-whipped Saddam Hussein in the name of Kuwait’s “territorial integrity,” thankfully with few American casualties. The combined cost of these three conflicts alone was in the billions.

How, then, did Congress avoid its constitutional power — or duty — to declare war over Korea, Vietnam, and the Persian Gulf?

The answer is that Congress played it safe. It gave the three presidents — Truman, Johnson, Bush — something, without having to go on record as formally declaring war.

In each case — Korea, Vietnam, the Gulf — Congress “actively acquiesced” in the President’s conduct as Commander-in-Chief. In Korea, Congress, while not declaring war, consistently supported our engagement by, among other things, approving conscription and appropriating money. In Vietnam, while not declaring war, Congress again provided for the draft, and again appropriated the necessary funds — even going further by giving Lyndon Johnson the questionable Gulf of Tonkin Resolution. In the Gulf War (I), Congress gave President George H. W. Bush a resolution of support, rather than a declaration of war.

In this “active acquiescence,” Congress reasonably could be confident that so long as it did not expressly oppose what the Commander-in-Chief was doing, the Supreme Court of the United States would uphold the President’s power to fight even absent a Congressional declaration of war.

The question of whether any of these three conflicts were “constitutional” — absent an express declaration of war by Congress — was never decided by the Supreme Court of the United States. Had it been — and if the current President Bush’s forthcoming attack on Iraq is ever reviewed by the High Court — Article II will trump Article I. The reason is found in the Korean War era case of Youngstown Sheet and Tube Co. v. Sawyer — a case which, while President Truman lost, President Bush can rely on as precedent to support his war against Iraq without Congressional approval.

The year was 1952. The place: the Asian peninsula of Korea. America troops were engaged in bloody combat against hordes of Chinese Communist troops who’d crossed the Yalu River and swept south. Here at home, a steel strike loomed. Truman, committed to his “police action” on the other side of the world, and fearing a strike would cripple the war effort, ordered his Secretary of Commerce (Sawyer) to seize and operate many of the nation’s mills.

A divided Supreme Court (6-3) invalidated Truman’s Executive Order, against, among other arguments, the President’s claim that his Commander-in-Chief power justified the seizure because of the war. Two aspects of the Court’s opinion bear directly on President Bush’s impending attack on Iraq.

For the Court’s majority, Associate Justice Hugo Black wrote:

Even though “theater of war” be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s law-makers, not for its military authorities. (Emphasis added.)

So a half-century ago, the Supreme Court expressly recognized that “theater of war” was an “expanding concept” — meaning that the paradigms of World War I and World War II had given way to less conventional military conduct, in aid of newer concepts of national self interest. Iraq — with its madman leader and weapons of mass destruction — is certainly an example of that more modern concept of what is in America’s interest today.

Moreover, the Court rejected President Truman’s seizure of the steel mills because they were private property. Although not expressly discussed in terms of eminent domain, the Court was saying that the President, as Commander-in-Chief or wearing any other hat, simply could not take private property for public use without the Constitution’s requirement that “just compensation” be paid. President Bush’s forthcoming attack on Iraq, of course, does not involve a taking of private property for public, or any other, use.

But most important about the Youngstown case — and most important if President Bush decides to move against Iraq without seeking a Congressional declaration of war — is the concurring opinion of Associate Justice Robert Jackson, former Attorney General of the United States and former chief prosecutor at the Nuremberg war crimes trials.

Jackson believed that the President’s powers vis-à-vis Congress, including especially his Commander-in-Chief power, were “not fixed but fluctuate, depending on their disjunction or conjunction with those of Congress.” From this premise, he developed a three-part analysis.

When the “President acts pursuant to an ‘express authorization’ of Congress, his authority is at its maximum.” Though FDR’s conduct prior to December 8, 1941, may have been questionable constitutionally, Congress’ immediate declaration of war provided the President with, in Jackson’s words, “maximum” authority.

It’s an open question whether the 1991 Gulf War Resolution constitutes Jackson’s “express authorization.”

Much closer to that authorization is the post-September 11 “Authorization for use of military force” Congressional Joint Resolution. It provides “That the President is authorized to use all necessary force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” I have emphasized the word “he” because the Joint Resolution expressly delegates (“authorizes”?) to the President the discretion to determine against whom to use force in defending the United States against international terrorism. However, even if the Joint Resolution does not rise to the level of Justice Jackson’s “express authorization,” it doesn’t matter.

Jackson continued: If the President acts

. . . in the absence of either a congressional grant or denial of authority, he can only rely on his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia . . . may sometimes . . . enable, if not invite, measures on independent presidential responsibility.

In other words, Congressional silence — especially in military affairs, where the President wears the mantle of constitutionally delegated Commander-in-Chief — enables him to act unilaterally. Thus, if Congress is silent about an attack on Iraq, which so far it has been, there is no doubt that under Justice Jackson’s Youngstown analysis, President Bush has the power to act unilaterally.

It is another story entirely if the President acts against the express, or even implied, wishes of Congress. He is then at the “lowest ebb” of his power. Then, according to Jackson, the President can

... rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. [e.g., the the President’s Article II power as Commander-in-Chief, versus Congress’s Article I power to declare (but not make)war].

In the case of Iraq, however, whatever Congress has already done to authorize the President’s actions (see the Joint Resolution), it is manifest that the Legislature — unlike in Youngstown, where Jackson found that seizure was contrary to the will of Congress — has done nothing to oppose military action against Saddam Hussein’s regime.

Youngstown thus puts Congress — especially the democratic-controlled Senate — on the horns of a dilemma. Under the Jackson analysis, which remains good law today, the Legislature has three choices. It can “actively acquiesce” in President Bush’s imminent military action against Iraq (e.g., the mealy-mouthed Gulf of Tonkin Resolution), in which case he has maximum authorization even without an express declaration of war. Or, Congress can remain silent on the subject, with some of its members continuing to posture on the Sunday TV talk shows, thus avoiding commitment, in which case President Bush, wearing his Commander-in-Chief hat, can give his troops orders to march on Baghdad. Or, Congress, uncharacteristically, can expressly oppose military action against Iraq.

But even then, President Bush will win a judicial showdown. Under the third part of Justice Jackson’s analysis, were Congress to be opposed to presidential action, that opposition need only be “scrutinized with caution.” This is most true when it comes to military matters.

Assume Congress were to expressly prohibit President Bush from attacking Iraq, removing Hussein, eliminating his cache of weapons of mass destruction, changing that regime, and starting to create a pluralistic fledgling democracy in the Middle East. When, later, the Supreme Court would “scrutinize with caution” whether the Commander-in-Chief possessed that power, it is a near certainty that under separation of powers doctrine Article II would trump Article I.

And so, for making the world a safer place, we, and President Bush, can thank Harry Truman for seizing the steel mills a half-century ago.


Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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