Mario Cuomo, who for some inexplicable reason seems to have a reputation among Democrats as some kind of intellectual, has an op-ed in the Los Angeles Times Monday morning that, don’t laugh, tries to make a sort of strict constructionist case against the liberation of Iraq.
The glaring factual errors begin in the first paragraph:
“Meanwhile, President Bush continues to insist that as commander in chief, he has the constitutional power to go to war and decide when to end it, unilaterally.”
But this is quite simply and obviously a lie. President Bush does not now and has never insisted such a thing. He did in fact receive authorization from Congress to invade Iraq.
Here’s the nut of Cuomo’s argument:
“The war happened because when Bush first indicated his intention to go to war against Iraq, Congress refused to insist on enforcement of Article I, Section 8 of the Constitution. For more than 200 years, this article has spelled out that Congress — not the president — shall have ‘the power to declare war.'”
Many consider the “Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq” in 2002 to be equivalent to a declaration of war. It’s debatable whether the Constitution requires the words “declaration of war” to be used for it to count, but the fact remains the president sought and received authorization from Congress.
It’s interesting how suddenly the “living, breathing Constitution” crowd becomes interested in exact wording when something they don’t like happens.
Incidentally, we don’t recall any similar article from Cuomo in the 1990s, and can’t imagine him writing one then.
But here’s where Cuomo drifts from his usual foolish talk into daftness:
“Nor were the feeble, post-factum congressional resolutions of support of the Iraq invasion — in 2001 and 2002 — adequate substitutes for the formal declaration of war demanded by the founding fathers.”
The Iraq invasion began in March 2003. So how could there have possibly been “post-factum” resolutions of support substituting for a declaration of war in 2001 or 2002? What in the world is the man talking about there?
The president received legal authorization for the invasion of Iraq from Congress before the war. Isn’t there one fact-checker or editor left at the Los Angeles Times, or did they all get laid off already?
The Unalienable Right 
The Unalienable Right, September 4, criticized former New York Governor Cuomo for being a strict constructionist in insisting that Congress, not the President, declare war, although that is exactly what the Constitution requires. We know the reasoning of those framers who spoke to the issue at the Constitutional Convention of 1787. They feared a president might take the nation to war for personal reasons, not for the public interest; therefore they entrusted the power to Congress, which was then partly elected directly by the people who would be at risk in a war.
Congress has devised a formula to evade this responsibility. That formula–authorizing the President to decide whether to use military force– was adopted in connection with Vietnam, and in the Iraq wars of 1991 and 2002. The 2002 resolution, still in effect, might be used against another nation.
The Unalienable Right editors say “Many consider the ‘joint resolution to Authorize the Use of United States Armed Forces against Iraq in 2002’ to be the equivalent to a declaration of war.” The editors did not report the actual language of the resolution which is:
“The President is authorized 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; and enforce all relevant United Nations Security Council resolutions regarding Iraq.” [emphasis added]
This is not a declaration of war by Congress. It authorizes the President to use force if and when he decides to attack Iraq. In this resolution, it is the President, not the Congress who decides to use military force. The editors say it is “debatable” whether the constitution requires the words “declaration of war” to be used. But it is not debatable who is to decide on war —it is Congress and not the President.
James Madison, the Federalist Guru, confirmed this view in a paper written in 1793 as Heldvidus, responding to Alexander Hamilton’s Pacificus as follows:
“If we consult, for a moment, the nature and operation of the two powers to declare war and to make treaties, it will be impossible not to see, that they can never fall within a proper definition of executive powers. The natural province of the executive magistrate is to execute laws, as that of the legislature is to make laws. All his acts, therefore, properly executive, must presuppose the existence of the laws to be executed. A treaty is not an execution of laws: it does not presuppose the existence of laws. It is, on the contrary, to have itself the force of a law, and to be carried into execution, like all other laws, by the executive magistrate. To say then that the power of making treaties, which are confessedly laws, belongs naturally to the department which is to execute laws, is to say, that the executive department naturally includes a legislative power. In theory this is an absurdity—in practice a tyranny.
“The power to declare war is subject to similar reasoning. A declaration that there shall be war, is not an execution of laws: it does not suppose pre-existing laws to be executed: it is not, in any respect, an act merely executive. It is, on the contrary, one of the most deliberate acts that can be performed; and when performed, has the effect of repealing all the laws operating in a state of peace, so far as they are inconsistent with a state of war… “
Governor Cuomo’s point is that the authorization for the use of force is unconstitutional because it places congressional power in the hands of the President, thus violating the principle of separation of powers that Justice Kennedy spoke of in Clinton v. New York, (524 US 417, 1998).
“…. The Constitution is a compact enduring for more than our time, and one Congress cannot yield up its own powers, much less those of other Congresses to follow… By increasing the power of the President beyond what the Framers envisioned, the statute compromises the political liberty of our citizens, liberty which the separation of powers seeks to secure.”
The President has called the Iraq invasion a war; the editors do not deny that it is. Because we were not attacked by Iraq, the President has no authority to wage war against that country except that given by Congress. Congress did not declare war against Iraq, and could not delegate its responsibility to the people to declare war. That duty to the people was imposed on Congress so that the people would know who to hold responsible at the next election.
Alfred W. Blumrosen, Thomas A. Cowan Professor of Law Emeritus, Rutgers Law School, Newark, NJ, author, with Steven Blumrosen, of study “White House Wars;” Co Author, Slave Nation: How Slavery United the Colonies and Sparked the American Revolution (2005); author Modern Law (1993); Black Employment and the Law (1971). 54 Riverside Dr, New York, NY; 212 873 1973, cell 917 670 8878, email theblumrosen@aol.com. Bio at http://law.newark.rutgers.edu/faculty_emeritus.html, Whose Who in America.
“…criticized former New York Governor Cuomo for being a strict constructionist in insisting that Congress, not the President, declare war, although that is exactly what the Constitution requires.”
No, we criticized Cuomo for being a selective “strict constructionist”. People on the left often try to act like they want to adhere to the actual wording of the Constitution when it suits their own agenda, but they turn right around and talk about the Constitution as a “living, breathing document” when that suits their purposes.
“The editors did not report the actual language of the resolution…”
We linked to the text of the resolution in it’s entirety. Thats how the Internet works.
The rest of your comment amounts to whether an “authorization” is substantially different from a “declaration”. Cuomo is, we believe disingenuously, quibbling over semantics because he is against the war in Iraq, not because he favors strict adherence to the words of the Constitution.