I expect that a declaration is actually needed here to pass Constitutional muster. However, as Mr. Auster pointed out, it’s a little late in the game for that now. Unfortunately, Congress has made itself a Devil’s bargain by delegating its Constitutional authority to the Adminsistration. Politicians are expert at hedging bets and playing both sides of the house simultaneously, and the present case is a textbook example. If the war is a success, Congress (even many Dems) get to bask in the glow and take partial credit. On the other hand, if something goes terribly wrong (like a devastating VX attack leaving thousands of US troops dead and permanently disabled), the blame will fall almost entirely on George W. Bush. It’s very sleazy and dishonorable, but the bargain has worked well for the carreer politicians who inhabit Washington for the last 50 years. Like prosecuting those who betray the country for treason (Jane Fonda, for example), declarations of war appear to be a thing of the past.

As with the business of getting the UN’s blessing to fight, this sets a terrible precedent. It now appears that any President can conduct a full scale war without having to bother securing a declaration of such from Congress. Even though support disarming Iraq by force, I hope a thoughtful judge will force the administration and the congress to comply with the constitutional requirement. Sadly, this represents yet another step in tearing down the constitutional republic that the nation’s founders thought out so carefully. My respect for George W. Bush continues to diminish.

Congress has authorised “the use of force” against Iraq, but this clearly is not a declaration of war. Does anyone know what the Constitutional standing of Congress authorising force is? Because I honestly do not know.

On Shawn’s question, there is no hard and fast rule. The Constitution says the Congress shall have power to declare war. The President is the Commander in Chief of the armed forces and can order them where he will. But the Constitution doesn’t say “the President cannot order the armed forces into combat without the ok of Congress.” There have been literally hundreds of times in our history that the President has sent forces into situations involving some fighting without authorization of Congress, and the constitutionality of which were never questioned. The War Powers Act in the ’70s tried to place limits on that power of the President, but is largely dead letter as far as I understand. This seems to be one of many areas where we have gone into a a kind of permanent Constitutional grey zone.

In this case, the bill passed by the Congress last fall authorizing the President to take action in Iraq if he saw fit would seem to cover things, at least as far as current conventional attitudes are concerned. I was trying to draw a red line at a war that involves the planned conquest and overthrow of the government of a foreign country. My idea is that if THAT doesn’t require a formal declaration of war, then nothing does, which would be a very bad direction for us to go in. It’s one thing to have grey areas in the Constitution. It’s another thing to erase a whole area of the Constitution.

Here’s a reason why a declaration of war may not have been appropriate in this case. When should such a declaration have been issued? Last fall, when we began sending our troops to the Gulf? But at that point, and for several months afterward, we were still pursuing the the UN option. Should we then have waited until just before hostilities were commenced? But that would have meant sending an army to the other side of the world, without the assurance that they would get the Congressional authorization to fight once they got there.

Looked at in this light, our non-declaration of war is more understandable.

However, we also pay a heavy price for it. For example, it’s hard to imagine all the sympathetic media coverage we’ve been getting from Iraq’s point of view if we had been formally at war with Iraq.