Responsibility and War: Constitutional Separation of Powers Concerns

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John Hart Ely was my first-year constitutional law professor at Harvard Law School. He was the Dean who hired me at Stanford Law School. He counseled me throughout my lawsuit against President Clinton's waging of an unconstitutional war on Yugoslavia. He was a man of intellect and principle, and he was my friend. I dedicate my remarks to his memory, knowing how terribly inadequate a testimony it is, but confident that John's legacy is a majestic tapestry. I'm happy to have been one small thread.

John Ely wanted members of Congress to take responsibility when America entered a war. Those who argue there is no need for Congress to declare war often suggest that the appropriation of money for war constitutes all the approval that is constitutionally required. They are wrong. Their logic cannot refute the reality that modern wars are short. Except for Afghanistan, the Persian Gulf War, and the conflict in Iraq that started in 2003, each of which was the subject of an explicit authorization vote by Congress, every war fought by America since the enactment of the War Powers Resolution was over well before sixty days--the period of time provided in the War Powers Resolution after which Congress must act. (1) When wars are that short, there is money enough in the Defense Department pipeline to fund them in their entirety. Congress does, indeed, vote for the Defense Department appropriation every year. If the critics are to be true to their logic, then that money could, evidently, be spent on any quick war that might come up. Just voting for money for the Defense Department would then constitute adequate congressional authority under the Constitution to go to war, against anybody, anytime during the year, so long as the war is a short one. Even without a revived delegation doctrine, (2) such an argument is absurd.

Critics further argue that there are often supplemental appropriations during the course of such wars that should serve as adequate congressional approvals for war. Supplemental appropriations do often occur, but not always. Further, I was in Congress for several such supplemental appropriation votes, and the votes hardly constituted ratification of the war in question. The argument on the floor regarding Yugoslavia, for instance, had very little to do with Yugoslavia. Rather, the appropriation was argued as being necessary to replenish the stocks of cruise missiles should we need them in Korea. The war waged by President Clinton in Yugoslavia had so depleted American military stocks that the supplemental appropriation was necessary for America to be prepared should another crisis arise before we were done in Yugoslavia.

In Dellums v. Bush, Judge Greene made an additional argument disposing of the claim that an appropriation was tantamount to what the Constitution required of Congress. (3) He observed that it was quite a different matter to vote on a war that was already ongoing as opposed to granting authority to go to war in the first place. The Constitution protected the people of our country from going to war on the President's decision alone. (4) The safeguard was to demand that Congress vote before a war had begun, not during a war already started. By then, the harm would have already been done.

John Ely knew this. In War and Responsibility, he demolished the often-made argument that the duty of Congress to authorize war, explicitly and in advance, had been lost because it had so seldom been exercised--an argument reminiscent of the law of adverse possession. "In search of verisimilitude--cf. Joseph McCarthy's 'two hundred and five' Communists working in the State Department--proponents of broad executive power often cite the 'exact number' of congressionally unauthorized presidential military incursions in our history." (5) John provided research demonstrating that in the vast majority of cases where it was claimed that war had been waged without Congress, there actually had been explicit prior congressional approval and not merely an appropriation vote. …