President Bush is wrong in claiming constitutional authority to send American forces into combat against Iraq without specific approval by Congress, many legal scholars contend.
But these experts say politics - not constitutional law - will determine the outcome of the war-powers debate between Bush and Democrats in Congress."It would be an error to think of this as primarily a legal debate," said Ron Rotunda, a law professor at the University of Illinois. "It is primarily political - these are policy matters more than legal questions."
Walter Dellinger, a Duke University law professor, agreed the debate is a highly political one but said constitutional principles should not be sacrificed.
"There are many difficult and uncertain constitutional questions, but this is not one of them," Dellinger said. "What the president is proposing is a flagrant disregard of a fundamentally important constitutional provision."
The Constitution's Article I, Section 8 says, "Congress shall have power . . . to declare war."
The Senate Judiciary Committee will hold a hearing Tuesday on the issue of whether Bush has an obligation under the war-powers clause of the Constitution to get authority from Congress before waging war against Iraq. Former Attorney General Nicholas de B. Katzenbach is expected to testify.
Dellinger was one of 127 law professors who last week signed a letter stating congressional approval is required before Bush "may order United States armed forces to make war in the Persian Gulf."
That view is not unanimous among legal scholars.
"Two hundred years of practice appear to be on the president's side," said Michael McConnell, a University of Chicago professor. "We have engaged in warlike activities over 200 times and have had only five declared wars."
Rotunda said, "President Bush is proceeding pursuant to proper treaties. It seems to me the president has all the authority to do whatever he wants. The (Constitution's) framers debated and changed the phrase `make war' to `declare war' because they did not want to tie the president's hands."
But both McConnell and Rotunda said Congress unquestionably has the power to prohibit further spending for any military endeavor. There is widespread agreement that Congress never would cut off funding once troops are in combat.
The Senate began formal debate Friday on Bush's war-making authority.
No definitive action is expected until Secretary of State James A. Baker III meets Wednesday with Iraqi Foreign Minister Tariq Aziz in Geneva, Switzerland. But Democratic leaders said there is no reason to postpone congressional debate until Baker's meeting.
"It is our view that the Constitution requires the president to seek the prior approval of Congress for offensive military action in the Persian Gulf now, a situation in these circumstances which would clearly be an act of war," Senate Majority Leader George Mitchell, D-Maine, said following a meeting at the White House.
"The president holds a contrary view."
McConnell said those who agree with Mitchell "have a great deal of history and practice to overcome."
Dellinger, however, said the actions of past presidents and congresses cannot change "the clear delegation of power to the Congress."
The Constitution cannot be amended by continually ignoring it, he said.