Yes, as I thought..there's nothing there authorizing what the government did. Article 1, Section 8 does give the power to Congress to declare war..but not to abdicate that power to the president. (Article 1 by the way clearly list All of the powers that Congress has, and all the power they are supposed to have.
You guys just dont quit. This goes against my better judgment but here goes.
First and foremost, a law is not unconstitutional until someone challenges it. If tomorrow congress passed a law that violated the hell out of your first amendment rights, but no one challenged it, then its still a valid law.
Secondly, SCOTUS does not decide political questions or foreign policy issues. That is an area strictly reserved for the executive branch. The Constitution limits the Court to dealing with Cases and Controversies. John Jay, the first Chief Justice, clarified this restraint early in the Court’ s history by declining to advise President George Washington on the constitutional implications of a proposed foreign policy decision. The Court does not give advisory opinions; rather, its function is limited only to deciding specific cases. This is primarily why the court declined to entertain any of the challenges to the Vietnam war (which was waged on far more tenantive legal theories might I add).
As for the constitution itself, article 1 section 8 vests in the congress the power to declare war. Ok, simple enough. But what is war? I think we al agree that 2 countries with formal armies engagin in conflict is pretty cut and dry. But what about situations shorter than that? What about minor conflicts that require military action short of total war? Do you think the framers intended to reserve the military only for formal threats?
Well, it would be nice to read some opinions, but that can't be done. Some legal scholars maintain that all military action taken without a Congressional declaration of war is unconstitutional however, the Supreme Court has never ruled directly on the matter. So no help here.
This leads us to the war powers act. As I'm sure you know vietnam was not a "war" by constitutional standards. Our congresscritters got very worried that the executive was chipping away at authority which was specifically reserved for the legislature. As a result, we now have the situation we have today, which requires the president to obtain either a declaration of war or a resolution authorizing the use of force from Congress within 60 days of initiating hostilities.
Again, its constitutionality has never been tested as Congress has always passed the required authorization when requested by the president.
So. With all of that hot air done with, lets get to the important stuff. The resolution that was enacted giving the president the authority to go into Iraq will probably never be challenged. Even if it was, SCOTUS will probably never hear it since it won't get involved in foreign policy issues.
As a result, by default it is constitutional.
But lets also take a common sense look at this. The reason that the framers wanted the legislature to have the power to declare war is so they could be a check on the executive. They simply didn't want a single beligerant president going anround the world fighting on a whim.
Conversely, once this happened the framers wanted the power and might of the military vested in one man. There is no more effective way to lose a war than to wage it by committee.
So since the whole point of having congress ok a presidents actions to go to war was to make sure he wasn't doing stuff willy-nilly, he had to have his actions certified. In this case, congress did give the president certification. The checks and balances were met. If SCOTUS did actually rule on this case I'm overwhelmingly confident that they would reach this result.
So tell me how the Iraq conflict can be legal when it is UNCONSTITUTIONAL? Please, don't try and pull the wool over our eyes with fancy (and nonsensical) legal jargon. The Constitution is rather simple to understand. It was written if a common language. Use language as plain to support you argument.
I hope I made it simple enough for you. As an aside, states cannot declare or wage war. I'm not trying to pull the wool over anyone's eyes, but merely trying to wade through the assumptions and ineperience that is a laypersons grasp of the law. There are plenty of things that are not in the constitution yet are constitutional. The first, and most important, that comes to mind is judicial review. The constitution also says nothing about having appellate courts or federal district courts. It doesn't say anything about administrative agencies or organizations such as the fbi or irs.
Nonetheless these things are constitutional. You may not like it, but thats the way the cookie crumbles.
