There is unrest in Syria and the war-drums keep beating to the tune of an attack on Iran. Is some sort of military intervention or war inevitable? If the Constitution is ignored, then more likely so. If the Constitution is respected as the Supreme Law of the Land, war may be avoided, or at least only undertaken with careful consideration, appropriate debate, and the representation of the people.
Following a series of presidential military excursions (The Korean & Vietnam wars to name two), Congress attempted to curb the president’s authority to use the military without prior Congressional approval. The War Powers Resolution of 1973 states that the president may deploy military troops so long as he notifies Congress within 48 hours and that the engagement does not last longer than 60 days without Congressional approval.
The curious thing is that Congress passed the War Powers Resolution to curb a president from doing something that he is not allowed to do.
The Constitution is, in essence, an operating agreement for the individual States in the Union. It outlines how the federal government and the individual states are to interact and the rules that all parties must follow. Under the rules of the Constitution, only the Congress has the power to declare war (Article I, Section 8). The War Powers Resolution attempts to change the operating procedures that the Constitution puts in place. However, the only legitimate way to change the operating procedures is to pass a Constitutional amendment (such as allowing individuals to directly elect federal senators instead of state legislators).
Therefore, the War Powers Resolution is unconstitutional. It attempts to change the Constitutional procedure for the United States to engage in war – something that no law is allowed to do. The only legal way for the United States to engage in war is for Congress to declare war. Any military action that uses the illegitimate War Powers Resolution as justification is also illegitimate.
For now, the president ought to be following the Supreme Law of the Land and seek a Congressional declaration of war before any military engagement.
Stephen Gnoza is the author of You Can't Do That.