Declare war before going to war

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American military action in Afghanistan is winding down, but if President Bush wants to expand the war to include members of the so-called "axis of evil," he needs congressional approval.

After Sept. 11, Congress authorized the president to retaliate against any "nations, organization, or persons" involved in the atrocity. However, there apparently is no evidence linking even Iraq to the September attacks. The administration seems prepared to treat Iraq's refusal to accept UN weapons inspections as a casus belli. But the president has no authority to act for this reason. He must go to Congress. Article 1, Sec. 8 (11) of the Constitution states: "Congress shall have the power ... to declare war."

One of the founders' criticisms of the British king was that he could unilaterally drag his nation into war. The framers consciously rejected such a system.

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Explained Alexander Hamilton: The president's power was "in substance much inferior to [the power of the king]. It would amount to nothing more than the supreme command and direction of the land and naval forces ... while that of the British King extends to the declaring of war."

The Founding Fathers drafted the Constitution as they did because they feared that presidents would act as they do now. Said James Madison, it is necessary to adhere to the "fundamental doctrine of the Constitution that the power to declare war is fully and exclusively vested in the legislature."

Delegates did change Congress's power from "make" to "declare" war, but they intended to give the president authority to respond to a sudden attack, not initiate a conflict. James Wilson observed: "It will not be in the power of a single man, or a single body of men, to involve us in such distress."

Of course, there always will be potential gray areas in today's complicated world. But most cases, such as attacking Iraq, are clear.

Are there any legitimate exceptions to the congressional war power? Some analysts suggest that in the modern world it is impractical to involve legislators in making foreign policy. No one thinks that 535 legislators should manage a war. That's why the Constitution names the president commander in chief. But Congress must decide whether or not the president will have a war to run.

Some would expand the president's power to use the military for "defensive" purposes. Defensive means defensive, however. Constitutional Convention delegate Roger Sherman of Connecticut explained that "the executive should be able to repel and not to commence war."

Presidents argue that they must be able to respond to unpredictable events. But there is almost always time to go to Congress, as after the Sept. 11 attack. Today, the favorite presidential excuse for claiming the right to initiate war unilaterally is: Everybody does it.

But the Constitution remains valid even after presidents violate it.

Whatever the target and whatever the reason, American presidents should not risk the lives of young Americans in foreign adventures without congressional consent. The decision of war and peace is far too important to leave to one man, however honest, smart, or popular.

• Doug Bandow is a senior fellow at the Cato Institute and former special assistant to President Reagan. He is also a member of the California and Washington, D.C., bars.

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