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March 25th, 2011

Iowa Congressman Declare War Illegal

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Written by: Nathan W. Tucker
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By Nathan Tucker

A majority of Iowa’s congressional delegation have argued that the president does not have the constitutional authority to use military force.  Or at least they did in 2007, when the president’s last name was Bush.  Now that the president is one of their own, however, they have remained inexcusably silent, while their Republican colleagues have appeared divided over the scope of the president’s powers.

Senator Harkin (D), along with twenty-nine of his Senate colleagues, wrote President Bush on November 1, 2007, that “no congressional authority exists for unilateral military action against Iran,” and they warned that “offensive military action should not be taken against Iran without the express consent of Congress.”

Democratic Congressmen Braley and Boswell co-sponsored House Joint Resolution 14, which stated that:  “absent a national emergency created by an attack or imminent attack by Iran upon the United States, its territories or possessions or its Armed Forces, the President shall consult with Congress, and receive specific authorization pursuant to law from Congress, prior to initiating military force against Iran.”

The two congressmen also co-sponsored House Joint Resolution 33, which similarly provided that “seeking congressional authority prior to taking military action against Iran is not discretionary, but is a legal and constitutional requirement.”  Citing historical precedent, the resolution stated that “initiating military action against Iran without congressional approval does not fall within the President’s `Commander-in-Chief’ powers under the Constitution.”

In 2007, Boswell co-sponsored, and Congressman Loebsack (D) voted in favor of, Articles of Impeachment against Vice President Cheney for, among other things, threatening unauthorized military action against Iran.  All four Democrats have declined efforts by The Iowa Republican (TIR) to learn why they were strident constitutionalists under the Bush Administration, but have yet to utter a denunciation of Obama’s use of military force against Libya.

Republican Congressman King has also declined comment to TIR, but, appearing on Mickelson in the Morning on WHO Radio Wednesday, he stated that congressional authorization would only be needed if the mission became “extended in scope” or there were “boots on the ground.”  When pressed by Mickelson, however, he said that he would have to review the War Powers Act and may need to rethink his comments.

Through spokesmen, both Senator Grassley (R) and Congressman Latham (R) told TIR that the Act authorizes the President’s actions, though they disagreed on the extent of the President’s authority.  Grassley’s spokeswoman emailed TIR that if “the President intended to expand the scope beyond the mission of establishing and enforcing a no-fly zone, Sen. Grassley would expect consultation with Congress and the need for congressional authorization would be based on the expanded mission.”

In contrast, when asked whether Latham “believe[d] that the Act authorizes any and all force, including ground forces, without prior congressional authority,” Latham’s spokesman appeared to reply in the affirmative, noting that the “Act does not define the scope of ‘introduction of U.S. forces.’”

On this question, the 2007 Democrats have articulated a position much closer to the Constitution than today’s Republicans.  As the War Powers Act notes, only Congress has the constitutional authority to declare war, while the President can only exercise military force “pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”

The President may also have the independent constitutional authority to launch strategic, even preemptive, defensive military actions, such as bombing Iran’s nuclear facilities, drone attacks in Pakistan, the 1986 retaliatory strikes against Libya, or the 1989 Panama intervention after Noriega declared war on the U.S.

However, the present areal invasion of Libya and destruction of that country’s air force, previously called an act of war by members of the Obama administration, clearly falls outside these limited inherit powers of the presidency and should be opposed by Congressmen of both parties.


About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at nathanwt@juno.com.




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