CONGRESSIONAL WAR AUTHORIZATION POWERS
The Constitution could not be clearer on Congress’ role deciding whether this nation goes to war.
Article I, section 8, clause 11 of the Constitution confers on Congress alone – the House of Representatives and the Senate – the power to declare war.The 1973 War Powers Resolution was an effort to carry out the intent of our Constitution to require Congress, and the American people through them, to enter into a debate before we send our sons and daughters off to fight, perhaps to die, for their country. However, Presidents of both parties have tended to ignore their responsibility to gain Congressional authorization before sending American troops into offensive combat – and Congress has too often been content to duck its Constitutional role.
Senator Durbin believes that the Constitutional balance between the Executive and Legislative branches must be restored.
Article I, Section 8, Clause 11 of the Constitution, the so-called “war powers clause,” vests in Congress the power “to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.” Clause 18 of this section gives Congress the power to “make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” This clause clearly states that it is
Congress that makes the laws for the regulation of the Armed Forces,
especially in matters of war.
Article II, Section 2 of the Constitution states that “The President shall be
commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States” --
the only war powers vested in the President by the Constitution.
The courts have also upheld the implied constitutional power to “authorize” war: Most recently, the U.S. District Court in Washington, D.C., writing in the 1990 case of Dellums v. Bush, “If the Executive had the sole power to determine that any particular offensive military operation, no matter how vast, does not constitute war-making but only an
offensive military attack, the congressional power to declare war will be at the mercy of a semantic decision by the Executive. Such an ‘interpretation’ would evade the plain language of the Constitution, and
it cannot stand.”
During the Cold War, Congress essentially ceded its constitutional war powers responsibilities to the President. Many of the significant instances of use of force by the Executive without Congressional authorization - including the only major unauthorized war, Korea, and localized conflicts in the Dominican Republic, Grenada and Panama, among others - occurred during this period.
The 1973 War Powers Resolution unfortunately has done little to slow the gradual assumption of war powers claimed by successive administrations, or to embolden Congress to properly exercise its war powers responsibilities under the Constitution.
Even in signing the congressional authorization of the use of force against Iraq in 1991, President Bush was at pains to emphasize his claim that he possessed the constitutional authority to act without it: “As I made clear to congressional leaders at the outset, my request for congressional support did not, and my signing of this resolution does not, constitute any change in the longstanding positions of the Executive Branch on either the President’s constitutional authority to use the Armed Forces to defend vital U.S. interests or the constitutionality of the War Powers Resolution.
The Clinton Administration has echoed President Bush’s comments and even taken them one step further. In a Statement of Administration policy threatening a veto of the House Defense Appropriations bill if a similar amendment by Rep. David E. Skaggs were included, the Administration stated that “The President must be able to act decisively to protect U.S. national security and foreign policy interests.”
Senator Durbin does not believe the framers of our Constitution would ever have accepted such inflated claims of Executive authority, or the idea that the Armed Forces should be used by the President as a device for implementing administration foreign policy without the approval of Congress.
http://durbin.senate.gov/issues/warauth.cfm