A group of House Democrats and a handful of citizens are suing in the 1st Circuit Court of Appeals to stop the war. They are arguing that the president shouldn’t be able to order troops to war without a congressional declaration of war. In the past, courts have been reluctant to intervene in such “political questions.”

While I find the argument interesting, it has no chance of winning. Presidents have been sending the military into harm’s way at least since Jefferson ordered strikes against the Barbary Pirates in Tripoli. It has been done so many times as to have simply become the way we do things, much like the federal judiciary acquired the unenumerated power of judicial review. Indeed, the Congress formalized this fact with the 1973 War Powers Act, passed over Nixon’s veto, which allows presidents to use force on their own, but requires that they notify Congress as soon as possible and get approval after 60/90 days. Furthermore, it is arguable that the October 2002 joint resolution of Congress authorizing the president to use force in Iraq amounts to a declaration of war.

Philosophically, I don’t think presidents should have the right to act without congressional approval in matters such as this case. In situations where there is an imminent crisis, the president as Commander-in-Chief obviously needs to be able to act quickly and decisively. But when we spend months playing footsie with the UN, in a Quixotic quest for legitimacy, presidents have time to gain the approval of Congress. I didn’t like it when Clinton sent troops into Kosovo and Bosnia without authorization, and don’t like it now with Bush. But, again, that’s how the war power has evolved and I can’t see the courts overriding that now.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.