Richard Pious Position: CON

“Resolved, Presidents Have Usurped the War Power That Rightfully Belongs to Congress.”

Richard PiousPosition: CON

Constitutional DebateConstitutional DebateAs Kassop indicated, the framers refined the war powers to assign certain

responsibilities to each branch.

“Repel Sudden Attacks…”Though Congress “declares” (rather than “makes”), the president is authurized to “repel Sudden Attacks…”

Constitutional Debate

Pious: ArgumentThe intention of the framers is therefore clear: “the power to ‘make’ war is

not limited to Congress. It is a responsibility shared by Congress and the President.

Otherwise Constitution is UnclearNothing else, in Pious’ opinion, is certain. Constitutional Language is not specific to resolve jurisdictional disputes.

History is a Better Judge

War Powers: Living Constitution

History of War Powers

Early Presidents: Used Powers Quite Freely

Lincoln: Informed Congress After the FactCongress authorized expanded presidential retroactively, after

being called into special session.

Court: Declaration of War No Required In Civil Wars



Police Powers:Began with Cleveland, then Teddy Roosevelt, expanded by Truman.


Presidents and Cold WarTwo trends:

1) Congressional Resolution Supporting Presidents2) Congressional Abdication of Authority

Why No Declarations of War?


Presidents and Cold War

Examples: (Resolutions)Cuban Missile Crisis (1962)Gulf of Tonkin Resolution (1964)Gulf War (1991)Iraq War (2003)

Examples: (Abdication)Korean War (1950)National Commitment Resolution (1969)

War Powers and the Judiciary

War Powers and the JudiciaryCourts has for the most part resisted injecting itself between the president

and Congress.

Vietnam Cases:Luftig v. McNamara (1967)Draftee resisted on grounds that Congress had not declared war.

Court support presidential auth.

Berk v. Laird (1970)President had war powers in absence of declaration of war, but such authority depended on joint action with Congress.

Failure of the War Powers Resolution

Failure of the War Powers ResolutionCongress responded to an permissive court by passing the War Powers

Resolution.

Presidential ResponseEvery president Nixon has questioned its Constitutionality.


War Powers and Judiciary: Dodge Issue

Cases: Dellum v. Bush (1990)Several members of Congress sued to stop Bush from using force to expel Iraq from Kuwait. Court found use of presidential war powers had become too expansive, but then refused to pass judgment, deferring instead to Congress to decide.

If Congress did not Act, the Courts would not Act.


Clinton and War PowersClinton largely ignored Congress when planning military act first in Haiti,

then in Serbia.

Case:Campbell v. Clinton (1999)Court that members of Congress who challenged Presidential War Powers lacked standing, since Congress had not clearly expressed its will.


Bush and IraqCited Congressional 2002 resolution supporting the use of force against, and

1998 policy of “Regime Change” as “joint” authorization to invade Iraq in March 2003.

Bush and International MandateBush claimed an International Mandate, but struggled to get in passed through the UN.

Case:Doe v. Bush (2003)Court again refused to rule on whether a president had overreached, citing evidence of joint authorization.

Conclusion

Conclusion:The problem has not been presidential war powers, but the failure of

Congress (or the courts) to counteract presidential ambitions.

Richard Pious Position: CON

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