Posted on March 31, 2021




Congress cannot un-declare war


Daniel Clark



In an action that can only be understood to be a parody of its own inanity, Congress has decided to un-declare a war that the United States and its allies have already won. Led by Democrat senator and former vice presidential candidate Tim Kaine, large majorities in both houses have voted to end the 2002 Authorization for Use of Military Force Against Iraq. One may be excused for being unaware that such an authorization had ever been passed, because one of the many falsehoods that suffice for "what we know now about Iraq" is that it was an undeclared war. In fact, there is no substantive difference between a declaration of war and an AUMF.

Since the start of the Second World War, many laws involving presidential emergency powers have been written so that they are enacted when our nation is in a state of declared war or national emergency. In order to prevent such powers from taking effect, Congress simply omits the phrase "declare war" from its authorization, the theory being that until the Supreme Court rules that the AUMF is a declaration of war (and when would it have occasion to do that?), they have plausible deniability.

This is pure semantic silliness. Article I Section 8 of the Constitution only empowers Congress to declare war, not to execute it. When Congress declares war, all it is doing is authorizing the president to use military force against a particular enemy. To argue that an AUMF is something other than a declaration of war is about as senseless as saying that Massachusetts, Pennsylvania, Virginia and Kentucky are not states, just because they use the word "commonwealth" in their state constitutions.

The congressional power to declare war begins and ends with the words "to declare war." The Constitution does not empower Congress to end a military deployment, nor to set parameters within which the war must be fought. It doesn't even say that a declaration is necessary to go to war. There's an argument to be had, for example, that declaring war on Japan was unnecessary, once that nation was already at war with us. Congressional war powers, compared to those of the president, are extremely limited by design. By taking a symbolic vote that can't help but demonstrate this, Kaine and company are merely flexing their legislative beer muscles.

The repeal resolution does not question the many justifications for the invasion of Iraq that were enumerated in the 2002 AUMF. It does not attempt to undo any part of the war, or to withdraw the soldiers who remain there in its aftermath. To the contrary, it acknowledges that its passage and signing would have no real-world effect whatsoever. According to the only clause in the bill that attempts to explain its purpose, "Whereas authorizations for the use of military force that are no longer necessary should have a clear political and legal ending: Now, therefore, be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, The Authorization for Use of Military Force Against Iraq Resolution is hereby repealed."

This amounts to little more than recycled Clinton-era psychobabble about needing "closure." Moreover, it's based on an incorrect premise. An authorization for the use of military force already has a clear political and legal ending. It's called the start of the war. Once the president acts, the authorization has served its purpose. The end of a war, on the other hand, is not always clearly demarcated. The original purpose of the invasion was to depose Saddam Hussein, but once he and his sons had been killed, our soldiers came under attack from al-Qaeda in Iraq forces populated with Saddam's former officers, so the war could not truly be said to be over. In time, our forces routed AQI, but in the absence of a formal surrender, there was no moment that we may pinpoint as Victory in Iraq Day. Not that Congress means to declare victory anyway. Like our past two presidents, they seek to "end" the war without ever acknowledging its outcome.

So, to summarize: In order to make a hollow rhetorical point in opposition to "forever wars," Congress is brandishing its power to declare war by repealing its authorization of a war that's over and cannot be undone, all the while denying that this authorization is a declaration of war -- a denial which, if true, would render the act unconstitutional.

... And you probably thought they weren't taking their work seriously enough.



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