The Persian Gulf conflict moved this week to federal court, where more is at stake than might initially meet the eye.
The main constitutional issue, of course, involves a deceptively simple question: When, if ever, does the president have the right to send troops to fight without the consent of Congress?Also at stake is the willingness of the courts to break new legal ground.
The simple historical fact is that American presidents have ordered armed forces to engage in hostilities more than 200 times since the founding of the republic. Yet Congress has issued only five declarations of war, though it sometimes has approved of presidential action through other resolutions.
That doesn't mean there have been few legal challenges to presidential military actions. On the contrary, there have been plenty of lawsuits like the one heard Tuesday in Washington by Federal District Judge Harold Greene in a case filed by 54 congressional Democrats, including Utah Rep. Wayne Owens.
Over the years, the legal precedents have all been on the White House's side. Indeed, the Supreme Court has rarely had to rule on these war-powers cases because they have been dismissed in the lower courts.
But in 1980, the Supreme Court ruled that no congressional representative or bloc of representatives can speak for Congress. To have legal power, a majority of Congress must act in concert. So much for this week's closed-door vote by a caucus of House Democrats to approve a resolution insisting that Congress give "affirmative approval" before any military action is launched in the Persian Gulf. The 177-37 vote by the caucus is still far short of a congressional majority.
Sometimes judges have ruled that those challenging the president do not have "standing" in court because they have not suffered a true "injury." The courts, after all, are in the business of deciding concrete cases, not issuing theoretical pronouncements about something the president might or might not do.
Other times the courts have declared that disputes between the legislative and executive branches of government cannot be settled by the courts on the grounds that such issues are political, not legal. The highly partisan nature of the lawsuit before currently before Judge Greene is readily apparent.
Furthermore, the Constitution requires the president to protect Americans, a number of whom are being held hostage in Iraq. And it requires the president to execute the laws - including treaties such as the United Nations Charter, which outlaws aggression and authorizes collective self-defense.
Moreover, Scripps Howard News Service makes a telling point when it notes:
"Respected constitutional scholars argue that no declaration of war is legally required to repel aggression - Saddam Hussein's aggression in Kuwait any more than the North Korean attack on South Korea that prompted President Truman to send Americans far away to fight. The founding fathers' purpose in giving each house of Congress the power to stop a declaration of war was to prevent presidents from starting military adventures. Someone else has already started the war in Kuwait."
Despite all this, the fact remains that - with polls showing 70 percent of the American people resist the idea of military action against Iraq - President Bush could be committing political suicide if he sends our forces into any long, costly conflict without the backing of Congress. That's why Bush has consulted frequently with congressional leaders. That's why a formal vote by Congress would be advisable at some point.
But if economic sanctions against Iraq are as ineffective as they usually are, Congress can withhold its consent for military action only at the expense of weakening the United Nations and undermining our allies' confidence in America's reliability.
As long as Iraqi strongman Saddam Hussein thinks America won't get tough until every member of Congress is satisfied, his incentive to relinquish his plunder will be slim indeed.