Stone Reviews Irons's War Powers

Something to Declare; From the Civil War to Iraq, Congress has been losing its grip on a vital responsibility
Geoffrey R. Stone
The Washington Post
August 28, 2005

War Powers: How the Imperial Presidency Hijacked the Constitution, By Peter Irons (Metropolitan)

Reviewed by Geoffrey R. Stone

On only five occasions has the United States declared war: the War of 1812, the Mexican War, the Spanish-American War, World War I and World War II. But U.S. armed forces have fought in more than 150 police actions, military incursions and international conflicts without any formal declaration of war. These include the Civil War; William McKinley's use of U.S. troops to quell the Boxer Rebellion; Theodore Roosevelt's invasions of Colombia and the Dominican Republic; William Howard Taft's incursions into Nicaragua, Honduras, Mexico and Cuba; Woodrow Wilson's occupations of Veracruz and Haiti; the Korean War; the Vietnam War; Ronald Reagan's dispatch of the Marines to Lebanon and Grenada; the 1991 Gulf War; Bill Clinton's uses of force in Somalia, Haiti, Bosnia, Afghanistan and Kosovo; and George W. Bush's invasions of Afghanistan and Iraq, to name just a few.

A central thesis of Peter Irons's War Powers is that this "long series of undeclared wars" has "subverted the Constitution's command that only Congress has the power to declare war and to authorize the president to send troops into combat." Consider the current war in Iraq. President Bush marshaled a massive military force in the Middle East and gave Iraq an ultimatum about weapons of mass destruction. When Saddam Hussein failed to comply, one might have expected the president to seek a declaration of war from Congress. After all, Article I of the Constitution plainly states that only "Congress shall have power . . . to declare war." But Bush did not seek a declaration of war; he simply attacked.

He's hardly alone, of course. As Irons underscores in his subtitle, War Powers traces "how the imperial presidency hijacked the Constitution." According to Irons, by assigning Congress the power "to declare war" and the president the role of "commander in chief," the Framers concluded "that the president could act without a congressional declaration of war to repel an invasion but that only Congress could authorize the deployment of forces outside the nation's territory in combat against foreign troops."

A political science professor at the University of California-San Diego, Irons argues that in the early decades of the republic, presidents, Congress and the courts generally respected this original intent. But gradually the executive branch arrogated to itself the power to determine when and how to employ military force -- disregarding Congress's exclusive constitutional authority "to declare war." This process accelerated rapidly after World War II as "the American empire became a reality, anchored in conglomerates with global reach and protected by U.S. military bases around the world." Irons takes the reader through more than a dozen episodes to illustrate this dramatic accretion of executive power -- one so complete that undeclared wars have simply become the rule rather than the exception.

The central historical narrative here is both compelling and unnerving, but War Powers is in one sense unsatisfying. Irons purports to have written an even-handed account, neither "polemical in tone" nor "partisan in approach," to enable "readers to determine their own stands" on these fundamental issues. But War Powers is anything but even-handed. It attributes a definitive "original intent" to the Framers, treats that intent as the gold standard by which all subsequent actions must be judged and condemns all departures from it. My objection is not that Irons is wrong in his conclusions, but that he never seriously considers the opposing arguments.

Legal scholars are having a lively debate these days about the "original" understanding of the "declare war" and "commander in chief" clauses of the Constitution. Some serious academics argue that declarations of war were understood by the Framers as mere formalities that were relevant to international law but didn't determine the powers of Congress or the executive. Irons is on the right side of this controversy, I believe, but a fair-minded presentation would have acknowledged and addressed the competing views -- especially because they are aggressively advanced by defenders of the Bush administration.

Many similar puzzles go largely unaddressed. Why should "original intent" be determinative? Surely the world (to say nothing of the nature of war) has changed profoundly since the 18th century. When it comes to constitutional interpretation, is Irons in league with Supreme Court Justices Antonin Scalia and Clarence Thomas? And what is a "war"? Irons assumes that any use of military force, other than to repel an invasion, is governed by the "declare war" clause. But if the president sends troops to a friendly nation to help put down an insurrection, is that a war? Against whom?

Moreover, Irons criticizes the courts for evading the question of whether presidents could constitutionally send troops to Vietnam or Iraq without a congressional declaration of war. But in disputes between the executive and Congress, each branch has ways to deal with the other. If Congress believes the president has usurped its authority, it can cut off funds or vote a bill of impeachment. For judges, this is a very different problem from the protection of individual liberties. Courts might quite reasonably regard such inter-branch conflicts as "political questions." After all, why shouldn't courts let the other branches of government duke such issues out themselves and save their own authority for disputes over individual rights, where their intervention is most needed?

And if Irons is right, why has Congress so willingly abdicated its constitutional authority? Is it enough to say that presidents have "cowed" the Congress into acquiescence? Has this also happened on domestic matters? If not, why not? Moreover, why aren't congressional authorizations to use force -- such as the 2002 joint resolution authorizing the president to employ military force in Iraq or the 1991 vote endorsing Operation Desert Storm -- the constitutional equivalent of a declaration of war? What difference would it make if Congress had had to declare war rather than merely enact a joint resolution? Has this shift in our constitutional processes really been so dire, or is reliance on such authorizations a more sensible device in the modern era? Irons's admirable historical narrative neatly poses these and other questions, but it neither analyzes them critically nor gives readers the tools to do so themselves. In that sense, War Powers falls just short of what it could have been.

Geoffrey R. Stone is the Harry Kalven Jr., Distinguished Service Professor of Law at the University of Chicago and the author of Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism.

 Copyright 2005 The Washington Pos

Faculty: 
Geoffrey R. Stone