Oops, They Did It Again!

Waging war on waging war

by Sean Carter
03/01/03

Recently, six members of Congress joined a lawsuit brought by soldiers and parents of soldiers against President Bush seeking an injunction against the impending war in Iraq. The lawsuit claims that only the Congress has the power to make war and that without a formal declaration of war from Congress, Bush’s proposed campaign in Iraq is as invalid as Diana Ross’s driver’s license.

The only problem with this argument is that Congress passed a resolution in October that gives Bush the power to “use the Armed Forces of the United States as he determines to be necessary and appropriate in order to … defend the national security of the United States against the continuing threat posed by Iraq.” In other words, Congress has already authorized Bush to do pretty much anything he darn well pleases in Iraq.

In recognition of this slight “oversight,” the plaintiffs filed a 25-page memorandum of law arguing that the October resolution doesn’t really mean what it says. Their first argument is that the resolution only gives Bush the power to come back to Congress to ask for permission to go to war.

This is a dumb argument even by legal standards. First of all, the resolution does not contain any such language. Moreover, the purpose of the resolution is to give Bush the power to take military action, not the power to come back to ask for permission to take military action. This would be like asking my wife for permission to play poker with the guys on Saturday night (Guys, don’t act like you don’t have to ask for permission too.) However, instead of her saying “Yes” or “For the thousandth time, NO,” she says, “If you promise to be home by midnight and not drink too much, I agree to let you ask me again on Friday.” Even the most hen-pecked wimp wouldn’t find this acceptable.

The plaintiffs seem to realize this as well so their second argument is that Congress didn’t have the power to give Bush such broad authority. This argument would have some merit except for the fact that it failed a decade ago when 54 members of Congress sued to stop the first Gulf War.

Third, the plaintiffs argue that Bush’s proposed actions violate the War Powers Act, which requires “specific statutory authorization” before the President can wage war on foreign soil. However, the resolution provides “specific statutory authorization.” It states, “the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.”

In short, the plaintiffs’ arguments in this case hold water about as well as a pair of fishnet stockings. Moreover, the entire case could be used as evidence to commit any of the 535 members of Congress to a mental institution.

America first became involved in the Vietnam conflict through a resolution similar to the one passed by Congress in October. In 1964, Congress passed the Gulf of Tonkin Resolution authorizing Lyndon Johnson “to take all necessary steps, including the use of armed force, to assist any member of protocol state of the Southeast Asia Collective Defense Treaty.”

After ten years of a war more senseless than Fox’s "Joe Millionaire" television series, Congress decided it had learned its lesson. It was never again going to give the President so much discretion to wage war. To make sure that this never happened again, it passed the War Powers Act. This act prevents the President from waging war in foreign lands without “specific statutory authorization.” From now on, Congress would have the power to stop a tragedy like the one in Vietnam, right?

Wrong! This is because Congress keeps circumventing the War Powers Act by passing these silly resolutions. For instance, in the October resolution, Congress gave Bush the power to use force to “defend the national security of the United States.” This mandate gives Bush more wiggle room than a Lil’ Kim Grammy outfit.

To make matters worse, Congress states that this open-ended resolution is “specific statutory authorization” for the purposes of the War Powers Act. With one simple resolution, Congress has completely negated the War Powers Act and presumably, all of the lessons we learned during Vietnam. The most important of which was not to allow Charlie Sheen to carry the lead role in a military film.

Someone once defined “insanity” as doing the same thing over and over again and expecting a different result. Well, by this definition (and any other), Congress is just plain insane.

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Sean is a practicing attorney who writes a weekly humor column on current legal events called "Lawpsided." Lawpsided pieces appear in a growing number of general circulation papers across the country, including The Los Angeles Times. Moreover, his musings on the law appear on nationally recognized websites, such as jewishworldreview.com, findlaw.com, newsmax.com and etherzone.com, and legal publications, such as The National Law Journal and The Los Angeles Daily Journal. Lastly, he is a regular contributor to national magazines like Razor and Tirade. If you would be interested in publishing this piece or seeing other samples of his work, please feel free to contact him by e-mail, by phone at (626) 786-2095, or through his website at:

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