For Ignoring Constitutional War Powers We Reap the Whirlwind

As a child I was taught to take the Constitution seriously. Some in my community asserted that it was a divinely inspired document which should be respected, revered and followed. After all, the creators of that document were persons of experience, learning and wisdom who had thought deeply about how government should be structured and how power should be divided. As a U.S. district judge, I have admired and cherished their history-tested insights. I speak here, however, as a citizen and only for myself. The framers, with their bitter experience of colonial status, their natural mistrust of undue power in the hands of one man, deliberately fractured governmental power into three great departments - legislative, executive and judicial - each to balance or check the power of the other. Miraculously, that fundamental structure has endured for more than 200 years. In the allocation of governmental power, the founders placed the power to declare war in the legislative branch. The words of the Constitution are plain. Section 8 of Article 1 says, "Congress shall have the power . . . to declare war . . . ." They did this deliberately and with full appreciation of the hard lessons of history, particularly British, French, Roman and Greek history. The design was to limit the power of one man to take the nation into war. They taught that the decision to start a war, and the inevitable cost in lives and treasure, foreseen and unforeseen, required that the nation make such a critical decision through its representatives in Congress, and to announce such group decision by a declaration. The president has no power to declare war. The judiciary has no power to declare war. The legislative branch, and it alone, has the power to declare war. To date, the Congress has not declared war against anyone, including Iraq. Yet the president calls himself a wartime president. The Congress has funded a war, off budget, that has yet to be declared. The failure to declare implicates international treaties and agreements, including how we treat prisoners. Nowhere in that hallowed document, the Constitution, do we find that the president may declare war. In 2002, the Congress passed a resolution which in effect delegated to the president the power to make war: "3. (a) AUTHORIZATION. - The president is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to - (1) defend the national security of the United States against the continuing threat posed by Iraq . . . ." Nowhere in the venerable document do we find the power of the Congress to delegate its responsibility to another, president or not. The Congress cannot amend the Constitution by legislation or resolution. One of the reasons for removing such a critical decision from one man was to slow the process down, to enable those charged with the responsibility for decision to examine with care the reasons, the facts supporting such a decision, and to make sure that the facts that drive the conclusion to start a war are real, not illusory. By delegating the decision to the president and thus avoiding its responsibility, the Congress skipped that careful process and relied upon others to make an examination of the underlying facts and reasons - which now appear, with belated, after-the-fact examination, to be thin, flawed, or nonexistent. It is elementary that the power to conduct a war, which is the responsibility of the president as the commander in chief, is different than the power to start a war, which under the Constitution is the responsibility of the Congress. Some may point to "precedent" that in the past some presidents have indeed acted contrary to the Constitution and the Congress let them get away with it. On occasion the members of Congress have been complicit in abdicating their responsibilities under the Constitution. But their historic actions in no way obliterate the words and the wisdom of the document. The people are owed "due process" in a different sense than usually employed; that is to say, a congressional process which carefully and completely examines the factual footing for making a momentous and far-reaching decision on whether we should or should not initiate a war. And if Congress decides we should, the Congress must have the courage to declare that decision to all the world with a specified and named foreign state in mind. The Congress should then be prepared to defend such a decision and be answerable therefore, including the consequences which flow therefrom, including the cost in lives and public treasure. Absent that, the people are shortchanged by their congressional representatives and as a result appear to have been victimized by an executive process which, at this point, seems to have been wanting in care and in depth. I have long wondered about the failure of the press and other media to examine the war power clause in any depth within the context of our current state of affairs. I have long lamented that the avowed "strict constructionists" are leading the charge of those who would ignore the plain language of the Constitution. The founders were long on brains and experience. An imperial presidency was dangerous and they knew it. That's the very reason they built in a constitutional check to guard against it. To our sorrow it goes ignored. We reap the whirlwind.
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U.S. Senior District Judge Bruce S. Jenkins has served 26 years on the federal bench in Salt Lake City