Bush is currently making war by power vested in him in a bill congress passed a year ( or so? ) ago. The language of the bill ran something like this:
**The President is empowered to enforce UN Resolution “Make Saddam Give Up His Weapons” by any means necessary, including force. **
There was more to it than that, obviously, but that’s the jist of it. Now, the question is, is this bill legal? The answer is NO IT’S @#$@#$ING NOT. But theres nothing we can do about it because the courts wussed out.
This bill was patently proven to be an unconstitutional grant of legislative power to the executive branch in * John Doe v. Bush *. The suit was brought by a whole bunch of servicemen (for standing) and some legal movers and shakers. Now, the Constitution explictly grants warmaking power to the Congress. What Congress did with this bill was tell the President that HE could decide when to go to war. Now, granted there were some conditions on when the Pres could do it, but they were phrased so loosely that they had no real meat to them. Congress ceded it’s power to declare war to the President for expediance- it would be hard to get around a filibuster in the Senate, and for accountability- “it isnt OUR fault we went to war, it’s the Pres!”
Federal courts had repeatedly held prior to this case that similar grants of limitless legislative power to the executive were unconstitutional. In several cases concerning executive agencies, courts have insisted that the legislature give strict guidelines to agencies in making rules. (though, suspiciously, the SC has really only come down on agencies that are making rules that might hurt big business. Hmmm.)
As one example of the real-world reasons breaking this part of the Constitution is a bad idea, consider this. When Congress gives the President a blank check to declare war when he wants, how can Congress stop him if the situation changes? This sort of scheme could be used to vest legislative ability in the excecutive before a party leaves power, allowing the minority party in the house to frustrate an attempt to repeal the act long enough for the President to take advantage of it.
The 2nd (maybe 3rd, I dont remember) Circuit took on this case. And the outcome? The court didnt want to debate the case; probably because the doctrine would make a decision against Bush inevitable. Essentially the court said it didn’t want to decide the case (there are fancy legal doctrines like ripeness employed, but a moment’s inspection shows they were farcical.). Perhaps wisely- what would happen to a poor District court judge that told the President he couldn’t go to war?. The merits of the case were never heard. The court rolled over in the wake of a popular president and let the Bush administration take a nice fat sissors to the Constitution.
So no, the President can’t be impeached, because Congress gave him the authority. And the courts wont stop Congress because they’re scared of being ignored or overruled by an overwhelmingly pro-Bush Supreme Court.
-C