TIME: Almanac 1993/TIME Almanac 1993.iso/time/121790/1217002.000

Text File | 1992-08-28 | 5.7 KB | 122 lines

                                                                                WORLD, Page 33

Just Who Can Send Us to War?


A legal dilemma pits the White House against Congress

By JOHN ELSON -- Reported by Jerome Cramer/Washington and Andrea
Sachs/New York


    For the Bush Administration, there are two tense face-offs
in the Middle East crisis. The other one is in Washington.
There the White House is skirmishing with congressional
Democrats over a constitutional question: Can President Bush
commit U.S. forces to combat without first gaining the consent
of Congress?

    Last week the debate intensified. "I do not believe that the
President requires any additional authorization from the
Congress," Defense Secretary Dick Cheney told the Senate Armed
Services Committee. "The President, as Commander in Chief . .
. has the authority to commit U.S. forces."

    Not so, answer the Democrats. By a vote of 177 to 37, the
House Democratic Caucus passed a nonbinding resolution stating
that unless American lives are in immediate danger, the
President may not initiate an offensive action in the Persian
Gulf without first obtaining congressional approval. On the
same day, in a packed Washington courtroom, Federal Judge
Harold Greene heard oral arguments in Dellums v. Bush, a
petition by 54 congressional Democrats seeking an injunction
that would bar the President from taking offensive action
against Iraq without the prior consent of Congress.

    The legal dilemma involves two competing clauses in the
nation's governing document. Article I, Section 8, of the
Constitution states, "The Congress shall have Power . . . to
declare War." But according to Article II, Section 2, "The
President shall be Commander in Chief of the Army and Navy of
the United States." In Judge Greene's courtroom, Attorney
Stuart Gerson of the Justice Department argued that history
provides numerous examples of Presidents exercising their powers
as Commander in Chief without a formal declaration of war.
Thomas Jefferson, he noted, committed the Navy to battle
against the Barbary pirates without a green light from the
legislature. By contrast, Congress has formally declared war
only five times, most recently in 1941. Nothing in the
Constitution, Gerson contended, says Congress has to declare
war before hostilities begin.

    A substantial body of legal opinion backs the view of
California Democrat Ronald Dellums, organizer of the petition,
who argues, "The Constitution clearly gives Congress the right
to declare war. This situation is too grave for one person to
take us into it alone." Laurence Tribe, Harvard's famed
professor of constitutional law, agrees with this. Tribe
dismisses as a "smokescreen" the Administration view, put
forward by Secretary of State James Baker, that presidential
consultation with Congress would be a legally sufficient
substitute for a formal declaration of war. "The structure and
history of the Constitution," Tribe contends, "make clear that
the framers deliberately rejected any scheme that would give
the Chief Executive the power to make the basic decision in
favor of war."

    Tribe was one of 11 nationally known law professors,
including conservatives as well as liberals, who wrote and
signed an amicus curiae brief in support of the Democrats'
petition. Another co-signer, William Van Alstyne of Duke Law
School, challenges the argument that there have been at least
130 acts of war that lacked congressional approval. "The number
is widely inflated," he says. "A lot of them don't count, since
they were for limited circumstances and for short periods of
time." In his view, the fact that the congressional war-power
clause has sometimes been ignored does not render it moot. Says
Van Alstyne: "The extent to which the allocation of war powers
has been disregarded for the past 25 years is no reason we
should continue to disregard it."

    Advocates of presidential authority note a similarity
between the present situation and one in 1950, when Harry
Truman committed U.S. forces to the defense of South Korea in
compliance with a United Nations Security Council resolution.
But Columbia Law School's Louis Henkin notes that "Congress
immediately ratified and acquiesced in the action." Moreover,
he says, "we have no case where the President went to war when
Congress told him not to."

    In 1964 Congress approved the moral equivalent of a war
declaration with the Gulf of Tonkin Resolution, which
authorized Lyndon Johnson to use whatever force was necessary
to protect U.S. troops in Vietnam. Frustrated by the bootless
escalation of that conflict, Congress nine years later overrode
Richard Nixon's veto of legislation requiring a President to
withdraw troops from hostile areas after 60 days unless
Congress approves the deployment. Several Presidents have
declared that War Powers Resolution unconstitutional, although
none asked the courts for a ruling.

    Instead, Administration attorneys have deflected the courts'
attention by arguing, as Gerson did last week, that war powers
are a "political question" and thus beyond judicial review. The
law professors' brief rejected that view, although Judge
Greene's questions indicated that the issue bothers him.

    Even if he and higher courts sidestep the problem, Congress
can stay the President's hand by exercising another power found
in Article I, Section 8: refusing to fund the war, as Congress
eventually did in Vietnam. But the ultimate check on White
House adventurism may be the one noted by the late American
historian Clinton Rossiter: "The people with their overt or
silent resistance, not the court with its power of judicial
review, will set the only practical limits to arrogance of
abuse."