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How Congress Forgot Its Own Strength

October 7, 2007
Op-Ed Contributor


 How Congress Forgot Its Own Strength

By MARIO M. CUOMO

SENATORS Jim Webb
<http://topics.nytimes.com/top/reference/timestopics/people/w/james_h_webb_jr/index.html?inline=nyt-per>
of Virginia and Hillary Clinton
<http://topics.nytimes.com/top/reference/timestopics/people/c/hillary_rodham_clinton/index.html?inline=nyt-per>
of New York are right to demand that the president go before Congress to
ask for a “declaration of war” before proceeding with an attack against
Iran or any other nation. But there is no need for this demand to be put
into law, as the two Democrats and their colleagues are seeking to do,
any more than there is need for legislation to guarantee our right of
free speech or anything else protected by the Constitution.

Article I, Section 8 already provides that only Congress has the power
to declare war. Perhaps the founders’ greatest concern in writing the
Constitution was that they might unintentionally create a president who
was too much like the British monarch, whom they despised. They
expressed that concern in part by assuring that the president would not
have the power to declare war.

Because the Constitution cannot be amended by persistent evasion, this
mandate was neither erased nor modified by the actions or inactions of
timid Congresses that allowed overeager presidents to start wars in
Vietnam and elsewhere without making a declaration.

Indeed, asking for more legislation now would imply that the
Constitution doesn’t mean what it already says.

It would repeat the mistake made by Congress in 2002 when it tried to
delegate to President Bush the non-delegable power that the founders
chose to give to the legislative branch. Congress’s eagerness to shed
the burden making the decision by passing resolutions that purportedly
“authorized” the president to decide whether to start a war denied the
nation the careful Congressional inquiry intended by the Constitution.

That deliberation might have revealed Iraq’s lack of complicity with Al
Qaeda
<http://topics.nytimes.com/top/reference/timestopics/organizations/a/al_qaeda/index.html?inline=nyt-org>
and the nonexistence of the country’s alleged cache of nuclear weapons.
The members of Congress would have had to vote specifically on going to
war (instead of on allowing the president to make that decision), which
would have assured closer scrutiny than they actually gave the question.

Proceeding with the proposed legislation would also create the
likelihood of still another failed Democratic legislative effort,
because it would probably not get enough votes from Republicans
<http://topics.nytimes.com/top/reference/timestopics/organizations/r/republican_party/index.html?inline=nyt-org>
to override a veto. Such a failure might have some political value as
another reminder of the Republicans’ eagerness for war, but it would
also remind voters that the Democrats have not been as effective as they
promised in 2006 they would be.

Congress’s refusal to comply with Article I, Section 8 of the
Constitution has led to a catastrophic aftermath. Such a tragedy should
never be allowed to happen again. Rather than enact new legislation that
would create constitutional ambiguity, the Democratic leadership in
Congress should assert its strength by simply announcing it will allow
no “resolutions” or “authorizations” purporting to delegate to the
president Congress’s constitutional power to declare war against any
other nation. Nor will there be any new war without Congress’s solemn
deliberation and declaration of war.

The Democrats should go still further and announce that no money will be
appropriated for any military action against another nation without a
proper declaration of war. And this should be the position of the
Democratic presidential candidates as well. How else can they make the
case that they are less likely than President Bush to wage dangerous,
improvident wars?

Mario M. Cuomo, the governor of New York from 1983 to 1995, practices
law with Willkie Farr & Gallagher.

Copyright 2007
<http://www.nytimes.com/ref/membercenter/help/copyright.html> The New
York Times Company <http://www.nytco.com/>

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