The confrontation with Iraq in 1991 reopened the debate on presidential war powers. In Dellums v. Bush, the Justice Department took the position that President Bush did not need prior authorization from Congress. According to its analysis, Bush could have independently taken the nation from a defensive posture in Saudi Arabia to an offensive operation against Iraq. The Justice Department advanced a number of sweeping interpretations of presidential power, all of which Judge Harold Greene systematically challenged and rejected. Judge Greene remarked that if the President has
the sole power to determine that any particular offensive military operation, no matter how vast, does not constitute war-making but only an offensive military attack, the congressional power to declare war will be at the mercy of a semantic decision by the Executive. Such an "interpretation" would evade the plain meaning of the Constitution, and it cannot stand. 83
Perhaps that interpretation cannot stand in court, as I hope is the case. But it may prevail if Congress fails to use the constitutional powers at its command. When it acquiesces to presidential initiatives, the record clearly shows that legislative passivity will not be corrected by judicial activism. A handful of legislators going to court will be told (appropriately) to return to their chambers and use the ample legislative tools that are available to check the President.84 As Justice Powell once warned Congress, if it "chooses not to confront the President, it is not our task to do so."85 Congress does not function in a vacuum. Citizens and scholars must pressure Congress constantly to discharge the responsibilities given it by the Constitution.