such authority would violate the War Clause. It is no answer that Congress can pull the appropriations plug on the President's unilateral deployment of armed force. The Framers did not enact a War Veto clause, and reliance on a congressional veto of war defies the constitutional arithmetic. Furthermore, pulling the plug is politically problematical.
On the other hand, nothing in the Constitutional text or practice requires Congress to declare war formally in order to authorize the use of force. Not only is the argument for formality inconsistent with the Framers' probable understanding of "declare," not to mention with the Marque and Reprisal Clause, but it is inconsistent with our custom from the earliest congressionally authorized war to the present, as well as with the uniform case law. Furthermore, that argument fares no better as a principle of constitutional governance than as a rule of constitutional law. It follows, therefore, that though President Bush did not alone have the authority to order the Gulf War, Congress constitutionally authorized that war by enacting the Authorization for the Use of Military Force Against Iraq Resolution. 147
In short, John Quincy Adams was only half right. 148 Although some of the war powers of the President and Congress are still undetermined, some were defined at the outset, and others have been determined by custom--executive practice with knowing congressional acquiescence.
I would like to thank George Washington University National Law Center students Gary Osen, Todd Sinkins, and Daniel Goldfried for their research assistance with this chapter, and my colleagues William C. Banks, Hal Bruff, Stephen Dycus, and Todd Peterson for their comments.
Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Book title: The U.S. Constitution and the Power to Go to War:Historical and Current Perspectives. Contributors: Gary M. Stern - Editor, Morton H. Halperin - Editor. Publisher: Greenwood Press. Place of publication: Westport, CT. Publication year: 1994. Page number: 46.