Desert Storm lite; the Unconstitutional

This is from BBC online:

Now, my question is this; is Gus right. Is Bush embarking on an Unconstitutional war?

Nah. Congress pretty much gave the President carte blanche last year when they authorized him war powers.

So now Bush has dictatorial powers?

It seems strange for a democratic country to grant an appointed president such powers.

“By a 296-133 vote, the House acted October 10 to authorize the president to launch a unilateral, preemptive attack on Iraq — if efforts to work through the United Nations fail — to strip Hussein of his existing weapons of mass destruction and block development of a potential nuclear threat.”
The measure passed stated that he did not have to get another vote if UN negotiations failed. He got the permission he needed long ago.


The President has always had absolute power to give orders to the military, even orders to attack the military and territory of a foreign nation. If Gus were right, then the majority of Presidents, starting (IIRC) with John Adams’ undeclared war against the Barbary Pirates, have similarly acted unconstitutionally. Certainly every single President since McKinley has done the same.*

The simple fact is that putting a check and balance on the use of military force is a practical impossibility. Congress cannot gather and act to authorize the use of force quickly enough in a crisis situation, and there is no clear dividing line between crisis and non-crisis situations.


*My memory is hazy in the inter-war years. It’s possible that Coolidge or Harding didn’t order the use of military force - the dates of all those interventions in the Caribbean escape me.

The commission of troops into battle is not reviewable by the Supreme Court. Short of impeachment, the President has the power to start the war. As others have noted, he already has the support of Congress (via the “'Authorization for Use of Military Force Against Iraq Resolution of 2002”), and even so, Adams started all this with the Barbary Pirates. There is no argument left that this is unconstitutional in fact.

Also – the Constitution does not specify the particular form a declaration of war must take. A case can be made (note that I do not say a definitive case) that the resolution does constitute a declaration of war.

I think many people would agree that the POTUS has virtually unlimited war powers for a time. Due to the War Powers Act (constitutional?) the President must work through Congress to a greater extent than just that which is mandated in the Constitution. To me it is a hurry-up-and-win-the-war act. Then, of course, its active provisions are not operable.

But, as was noted, in October of last year the US Congress gave the OK to operations in Iraq. I don’t know how you can get around that particular bit of legislation in determining legality or constitutionality in the United States. Arguments based on the UN, or its charter, or other documents constituting international law, remain.

Actually, I’d like a constitutional answer to something which occured to me…

The confinement and detainment of prisoners, along with the prosecution by military tribunal and other items that make the civil liberties types nervous…

Are those procedures defined as being OK to go with during wartime (as I understand the argument goes from the administration) but not during peacetime? If so, does it require and actually declaration of war for such to apply?

Or will the president, as with all presidents, just do whatever he can get away with?

Appointed? No, he was elected. Perhaps some people think it is an appointment, but no, it wasn’t. But we’re not going to debate that here.

Dictatorial powers? No, he still has to request a budget, can’t make laws himself, can’t act as a judge in (common) legal matters, isn’t in office for life, etc. I’d say that’s pretty far from being a dictator.

To get back to the OP, I don’t think this is unconstitutional. He has the support of Congress (the act referred to already), and such. As far as “declaring war,” no he can’t do that. But neither could just about any President in history who sent troops in somewhere.

I’m gonna give haljurn the benefit of the doubt here and assume he’s using dictatorial in a classical Roman sense. If he means what you think he means, then I agree that he’s engaging in hyperbole and setting up strawmen.

It is always interesting to read some armchair Constitutional lawyers read the Constitution, then put their interpretation upon what they read, then make some wild-assed declaration that something “is UnConstitutional”. See, there is this group of dudes who wear silly black robes- we like to call them “the Supreme Court”. Now, unless you are sitting on that august body- your opinion of what is or is not “Constitutional” don’t mean squat.

However, if you are a Federal Judge, or even a "noted Constitutional scholar’, then I’d say that your opinion is more than just “hot air”. But “Gus” isn’t either. In fact, some have already taken this concept to Court, and been shot down in flames.

True- in order to commit our forces in the long term, The Prez certainly needs the support of Congress. He has it. I’m not entirely happy with the fact he has it, but he does.

So- the Prez (Executive Branch) thinks he can do this Constitutionally. Congress (Legislative branch) also thinks so- or at least a large majority do. And the Courts (Judicial Branch) have so far agreed. But hey- who cares if all three branches of our Government think it is Constitutional? “Gus” doesn’t think so. :rolleyes: Ok- stop the tanks, NOW! :rolleyes:

Jonathan, the simple answer to your question is “we have no idea.” I can present arguments why I believe the detentions and prosecutions would be unconstitutional, but “constitutional” really means “the courts have gone along with it,” and these issues haven’t worked their way through the courts yet.


No offense to you, Sua, but boy that irritates me.

Not you, as I said. But I’m the sort who likes things determined. It’s always going to bug me that what is constutional one decade might not be the next.


The alternative is a prospective judicial activism, ruling on questions which are not yet justiciable.