Tuesday, May 20, 2008

Now that I've had time to think about the world...

I wanted to write about this as soon as I learned about it in Con Law, but the rest of law school got in the way of my ability to think about it.  Now I've been reminded of it by browsing through news feeds to try and allay my boredom.  So here's the thing.  I've been against this "war" for a long time.  Notice the quotes?  Yeah, because when we came to the war powers unit in class, I learned that it is not, in fact, a war.  Congress has not declared war, and only Congress has that power according to the Constitution.  And you know who I'm actually angry at for that?  Congress.  Yes, I'm angry at the President for wanting to use the forces in the first place.  But Congress did not do their job.  Congress has the power to stop him and they didn't.  And they violated the very thing they enacted to force them to do their job, which they enacted in response to what happened with Vietnam.

See, back in the 70s, Congress passed what was called the War Powers Resolution.  In it, they essentially put in a great deal of limitations on the President's power to send armed forces into conflict.  This was to force them to do something if the President was using armed forces and essentially fighting in a war without Congressional authorization to be at war.  One way it forces them to do something is that there's a six month limit for use of forces if a war has not been declared.  If the 6 months are up and Congress hasn't done something to authorize these forces, then the AUTOMATIC response according to the resolution is for the troops to be brought back.  The idea was, if you can't decide between war and peace, the automatic response is peace.

Obviously it's been longer than six months.  So why are we still fighting?  Well, I'll tell you.  It's because the War Powers Resolution is not being enforced.  As our Con Law professor likes to point out - what is the difference between a contract and a promise?  Enforcement.  What is the difference between a legitimate piece of legislation and a useless piece of paper?  Enforcement.  The Presidents don't want to enforce it, most feel it's unconstitutional.  Maybe it is, but only the Supreme Court could decide whether it's constitutional or not.  But they only get a chance to interpret the Constitution when a law is passed that might violate it AND someone sues on the basis of the constitutionality of that law.  And since Congress is using a little exception that was written into the Resolution, even though the purpose was to FORCE THEM TO DECLARE WAR because they were avoiding their constitutional duties, the Court doesn't have reason to touch it because no one's suing on it because it's not really being enforced.  Congress is using the exception of a "special statutory authorization" to use forces by enacting special statutes (which didn't require the same level of public support as a declaration of war would) authorizing the use of forces "as necessary" in Iraq.  And guess who gets to decide if the forces are necessary?  Yes.  Congress gave a statutory authorization for the President to take the power he's not supposed to have and use it to fight a "war" without a proper declaration of war so that they can sit back and not do their job.

There was a purpose to that clause in the Constitution.  The Founding Fathers deliberately vested the power in Congress to declare war because they did not want to vest that power in one person.  They knew war.  They were soldiers.  They didn't want it to be easy for the country to get into a war.  They didn't want the President to have king-like power, that's what they just got away from.  So they trusted that a body made up of multiple people, representing the general population across the country, would take the time to deliberate and determine if a declaration of war was necessary.  Meanwhile, if we were actually being attacked, the President would be permitted to respond without a declaration from Congress, but that response would not be the beginning of a war unless Congress said so.  It would be for the purpose of neutralizing the threat.  So the point was supposed to be that without that declaration, actual WAR would not happen once the threat was neutralized.  So after Vietnam, Congress recognized that checks and balances don't work if the body that's supposed to provide the check doesn't do it.  The War Powers Resolution was passed in recognition of that failure.  And still, Congress is not providing the check they're Constitutionally required to provide.  And the Founding Fathers are turning in their graves.
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2 comments:

Chucka Stone Designs said...

Wow, I almost don't even know what to say as a comment here. I feel completely ignorant at this moment because I had not a clue about the WPR. It was definitely an eye opener to read your recounting of how it should work and to realize that it isn't. You can't be the first law student to have learned about this so where is the accountablity? How come no one has called the President out on this yet? I wonder every day how this entire situation got so far out of hand and I think you nailed it right here:

Meanwhile, if we were actually being attacked, the President would be permitted to respond without a declaration from Congress, but that response would not be the beginning of a war unless Congress said so. It would be for the purpose of neutralizing the threat. So the point was supposed to be that without that declaration, actual WAR would not happen once the threat was neutralized.

There is no way to actually determine when the threat is neutralized because "terror" will always exist in some way shape or form so the President has actually created his own loophole that will allow him to continue to send military to fight forever if he desired. I am looking into this more deeply, thanks for the eye opener.

Bridgete said...

Yeah, I don't know where the accountability is. Maybe it's because it's been so recent that the law students that have learned about this aren't high enough in the system to say something about it. Or maybe they forgot, it was a very short unit within the whole of Constitutional Law, it just stuck in my mind because this stuff has made me angry since the beginning, so whenever I learn something new it just feeds that fire.