The Gulf War and the Constitution

Michael J. Glennon

From Foreign Affairs, Spring 1991

Article preview: first 500 of 6,964 words total.

Summary:  Examines the course of the Bush administration's decisions on despatch of US forces to the Gulf, and the 'near-complete irrelevance" of Congress thereto, in order to demonstrate that the War Powers Act of 1973 should be repealed or revised, as Congress clearly lacks the weighty role in the matter of declaration of war that the Constitution intended for it.

Michael J. Glennon is professor of law at the University of California, Davis, Law School. He is former legal counsel to the Senate Foreign Relations Committee and is the author of Constitutional Diplomacy.

During the January 1991 debate on whether to go to war in the Persian Gulf, many members of Congress were delighted at the legislature's response. "The Constitution, the American people and the cause of freedom have been served well," House minority leader Robert Michel (R-Ill.) said. Senator Strom Thurmond (R-S.C.) commented, "We have demonstrated to the world the meaning of democracy." Senator Sam Nunn (D-Ga.) rose to "commend President Bush for recognizing Congress' constitutional role." And House Foreign Affairs Committee Chairman Dante Fascell (D-Fla.) exclaimed: "He [the president] acknowledged the principle! . . . This is very important. By specific language, Congress authorized the war!" After four months of controversy about the allocation of the power to make war, it seemed easy to conclude, as did Representative Richard Durbin (D-Ill.), that "the United States Constitution had prevailed."

Easy, but wrong.

Starting from President Bush's unilateral commitment to defend Saudi Arabia and proceeding to Congress' jury-rigged approval, the episode represented a textbook example of how an audacious executive, acquiescent legislature and deferential judiciary have pushed the Constitution's system of separation of powers steadily backwards toward the monopolistic system of King George III. When President Bush finally requested legislative approval in a letter to Congress January 8, 1991, he never acknowledged that statutory authorization was constitutionally required. In fact, the president said that he still believed he had the authority to act without legislative authorization. "I don't think I need it," he said the next day, and White House aides hinted that the administration had the right to defy any restrictions that Congress might impose.

In addition to raising disturbing constitutional questions, these events highlight anew the fecklessness of the War Powers Resolution and the urgent need for that 1973 law to be repealed or revised.

II

The War Powers Resolution provides that authority to introduce U.S. forces into hostilities, actual or imminent, can be inferred only from a provision of law specifically authorizing such an action, a provision which must explicitly refer to the War Powers Resolution. With this latter requirement Congress served warning to both the executive and the courts that the argument used during the Vietnam War would no longer work: congressional approval could not be inferred from anything other than explicit authorization.

The Senate Foreign Relations Committee explained in its report on the resolution that the provision was intended "to counteract the opinion . . . that passage of defense appropriation bills, and the extension of the Selective Service Act, could be construed as implied congressional authorization of the Vietnam War."

The congressional debate on explicit authorization for the Gulf War was effectively over long before it began. It should have begun on August 7, 1990, the day after Secretary of Defense Dick Cheney announced the U.S. commitment to defend Saudi Arabia in the event of an attack by Iraq, which had overrun Kuwait four days earlier. John Kelly, assistant secretary of state for near eastern and south Asian affairs, had previously reminded a House Foreign Affairs ...

End of preview: first 500 of 6,964 words total.