by Henri-Paul Bolineau

I was very interested to have read Mr. Berg-Andersson's recent comments about the requirement in the U.S. Constitution that the President of the United States ask Congress for a Declaration of War.

My question is this: Since President Bush actually knows exactly which country the United States would be directly attacking this time, why doesn't he ask for such a Declaration? Or is there something we all don't know about going on in the West Wing of the White House and/or the corridors of the Pentagon?

Henri-Paul Bolineau

Mr. Berg-Andersson responds:

Well... putting aside the fact that there is, most likely, quite a LOT "we all don't know about going on in the West Wing of the White House and/or the corridors of the Pentagon", I don't think there is anything particularly nefarious (other than a mere violation of the Constitution the President was sworn to "preserve, protect and defend") involved in the Bush Administration's not seeking a Declaration of War. I think that attempting to go ahead in Iraq without such a Declaration is the unfortunate by-product of, at best, inertia and, at worst, arrogance (the term I myself used in one of my Commentaries was "hubris"): indeed, more than a bit of both!

First, as to "inertia": there has not been a formal Declaration of War by the Congress of the United States per Article I, Section 8, clause 11 of the U.S. Constitution since 5 June 1942 when war was so formally declared on a few minor Axis states (Bulgaria, Hungary and Romania: of course, by then, the USofA was already well involved in World War II [in the Pacific Theatre of Operations, the famous Battle of Midway was already ending that very day])- that's over six decades of overt American military activity (through Korea, Vietnam, the Persian Gulf [the first time] and on into the current War on International Terrorism- besides all number and manner of smaller military operations [Somalia, Bosnia, Kosovo- to name a few from the last decade of the previous Century]) without the type of Congressional approval envisioned by the Framers of the Constitution (the Framers, as I have already noted- more than once, intended the President to "wage war" in his capacity as Commander-in-Chief of the Armed Forces but not "declare" it, which would be the sole province of Congress).

As a result, a certain constitutional ennui has set in during which enough time has now passed so that no President- be he Democrat or Republican- wants to now be the first since Franklin Delano Roosevelt (whose Administration seems now so sepia-toned in the collective national memory [keep in mind that both the current President and his immediate predecessor, as well as the current President's main opponent in the most recent Presidential Election, were all born after FDR had already died!]) to have to go up to the Capitol to seek "permission" from Congress to use the President's Executive Authority.

And that very word- "permission"- underlies an intrinsic approach that brings me to what is likely behind the second reason I have opined: hubris, arrogance, outright and abject haughtiness. The Executive tends to, by the very nature of government based on a theory of Separation of Powers, look upon the Legislative as unnecessarily (though the Legislative would institutionally disagree with the use of the term "unnecessarily") "meddling" in the Executive's prerogatives: of course, the flip side of this particular coin is that this very attitude on the part of the Executive is precisely why the President should have to get such "permission" from the Legislative Branch before invading another country (absent a clear-cut case of self-defense, which attacking Iraq is not!)

So you have, in this case, the Bush Administration avoiding seeking a formal Declaration of War as part and parcel of its jealously (and, at least at times, only allegedly) guarding the President's functions as "Commander in Chief"- which is all well and good, except that George W. Bush is not MY Commander in Chief! I'm not serving in the Military- therefore, he can't boss ME around like he theoretically (if only through a long Chain of Command) might be able to do some buck private!! Nor is the President the Commander in Chief of Congress, because he is not the Commander in Chief of the vast majority of those who returned its Members via elections!!! The President is Commander in Chief of the Armed Forces only and, if we consider what the Framers themselves said (especially in relation to what they knew of Executive power- as well as potential abuse of that power) at the time of the Constitutional Convention, he is supposed to get the imprimatur of the elected representatives of the States and of the People on Capitol Hill before committing troops to battle!

Now President Bush does have a Congressional Resolution- passed with fair haste (albeit with some deliberation) this past Fall- stuffed into his back pocket that legally allows (or so the high-priced lawyers working for 1600 Pennsylvania Avenue NW, currently taking a but temporary cut in pay in order to add government service to their resumes in hopes of even higher pay post-White House, have apparently opined) the President to wage war in and against Iraq if he so deems it necessary; likely, this will even be upheld by the Federal Courts (at most, on an appeal from such a decision by the lower Federal bench, the U.S. Supreme Court will probably be most unwilling to "grant cert" [that is, it will refuse to issue a Writ of Certiorari (technically, merely an order from an appellate court that a lower court produce the record of a case being appealed but, in practice, now the principal manner in which the U.S. Supreme Court receives cases for hearing therein- the ancient and honorable Writ of Error (a product of the Common Law) to achieve the same result having fallen into relative disuse] and that will be that)... but this is not what those who actually drafted the Constitution would have said!

Politically, however, I can see no major reason for the Bush Administration not seeking such a Declaration: at this point, I don't see any evidence he wouldn't be able to get one from the current Congress. I do think the vote for a Declaration of War in each house would be a rather close one (and this might actually be a serious consideration among the President's political- as opposed to his military and legal- advisers: after all, we Americans have all been talking about the possibility of war with Iraq, certainly since the President's speech before the U.N. General Assembly last September; if nothing else, despite the controversy as to exactly how many might have actually shown up to protest [which is, to me, merely the stuff of "how many angels can dance on the head of a pin"], the anti-war demonstrations of the other weekend- in this country, as opposed to those elsewhere on the globe- were a clear indication that such anti-war sentiment as there is nowadays has been granted no small amount of time to get itself "fired up" in a way not seen a dozen years ago [then again, more time has now passed since the President's UN appearance last Fall (when one can say the issue of war with Iraq was first most fully joined) than between Iraq's invasion of Kuwait in 1990 and the actual beginning of the Persian Gulf War of 1991]): there would likely be more than a few "tail between the legs" Democrats in both the House and the Senate who, so chided by their supporters among their constituencies, might very well consider voting against a formal Declaration of War even though they had already voted for the Joint Resolution in the previous Congress.

Still, any floor vote there would be on such a Declaration of War- at least, as of this typing- would certainly be closer than the percentages re: For and Against War in Iraq as indicated in recent polling data (meaning that there is more support for such a war coming from beyond the Beltway than among those who legislate within it). True, such support- while the needed "supermajority" I have so often claimed a Leader in a Democracy must have among the populace in order to sustain a war- might be somewhat "underbelly soft" (in the polls I have seen, the favorable numbers start to dip beneath "supermajority" into "mere majority" range when things like "UN Security Council approval" are factored out and "United States going it alone or with very few other Nations" are factored in) and it may be this "softness" of the supermajority of which the Bush Administration might be most wary ("We already got our Resolution. Whew!-- let's not push it!!"). However, were President Bush to pretty much reiterate that which he already said during the "War Speech" portion of last month's State of the Union Address, I don't- at least right now (Public Opinion being such a fickle thing)- see how he would not get at least 218 of 435 votes in the House and 51 of 100 in the Senate (and, more likely, somewhat more than that) for a formal Declaration of War on Iraq.

Thus, I am left to conclude that something else must be at work here- again, nothing at all nefarious in and of itself (though the dicey constitutionality of the whole War Making apparatus absent a formal Declaration of War, however long its post-World War II "tradition", is quite troubling- where not potentially unseemly)- and I can only come back to the already stated issues of constitutional ennui (combined with the fear of the ramifications of having to be the first Administration in quite some time to clean the cobwebs off of Article I, Section 8, clause 11) and more than a little "attitude" on the part of the White House as the principal reasons for the current legal course the Administration is taking as regards this matter.

Keep in mind that, even in wartime, the President of the United States is not a dictator. Again, as I've said before, if he leads this country into a war with Iraq without a formal Declaration of War and things then happen to go significantly wrong, he will rather quickly lose his supermajority in favor (whether soft in the underbelly or no) and the political cost will be significantly higher than if he had gotten such a formal Declaration (which would allow him to better spread that "cost" around, even among more than a few Democrats- many of these potential electoral opponents of his next year). George W. Bush- whatever one might think of him, his policies in general, or the idea of war with Iraq in particular- is certainly, by not seeking a formal Declaration of War and solely relying on last Fall's Joint Resolution of Congress, taking what is potentially a huge political risk for a President who is only in his first term and who (so one would think) would very much like to be re-elected come Tuesday 2 November 2004! Win in Iraq and President Bush might even be a shoo-in for a second term; problem is: what if the wheels start to come off his potential victory (electoral, as well as military)?