The judge’s decision is worth framing:
Article I, Section 8, Clause 11, of the Constitution grants to the Congress the power “To declare War.” To the extent that this unambiguous direction requires construction or explanation, it is provided by the framers’ comments that they felt it would be unwise to entrust the momentous power to involve the nation in a war to the President alone; Jefferson explained that he desired “an effectual check to the Dog of war”; James Wilson similarly expressed the expectation that this system would guard against hostilities being initiated by a single man. Even Abraham Lincoln, while a Congressman, said more than half a century later that “
The judge, in his decision, waved off as spurious Bush administration arguments that it was for the president to decide whether or not a military action constituted war.
If the Executive had the sole power to determine that any particular offensive military operation, no matter how vast, does not constitute war-making but only an offensive military attack, the congressional power to declare war will be at the mercy of a semantic decision by the Executive. Such an “interpretation” would evade the plain language of the Constitution, and it cannot stand….
Here [in the Persian Gulf], the forces involved are of such magnitude and significance as to present no serious claim that war would not ensue if they became engaged in combat, and it is therefore clear that congressional approval is required if Congress desires to become involved….
The Court has no hesitation in concluding that an offensive entry into Iraq by several hundred thousand United States servicemen under the conditions described above could be described as a “war” within the meaning of Article I, Section 8, Clause 11, of the Constitution. To put it another way: the Court is not prepared to read out of the Constitution the clause granting to the Congress, and to it alone, the authority “to declare war.”
But Judge Greene also refused to issue an injunction preventing the president from taking the country to war in the Persian Gulf. “The majority [of Congress] is the only one competent to declare war, and therefore also the one with the ability to seek an order from the courts to prevent anyone else, i.e., the Executive, from in effect declaring war. In short, unless the Congress as a whole, or by a majority, is heard from, the controversy here cannot be deemed ripe.”
In other words, it was up to Congress to get off its ass and do its job. The court wasn’t going to do it for them. A minority of a few dozen members of Congress bringing a lawsuit made for a splendid legal argument. But to stop a war (or start one) Congress needed to act as a whole, as an institution, by majority vote.
When Congress reconvened the first week in January, the two leaders in the Senate, Democrat George Mitchell and Republican Bob Dole, agreed that it would be best if they didn’t bring up a war resolution until January 23, eight days
But this was one hot potato that congressional leaders clearly did not wish to handle. One Republican senator summed it up nicely on that opening day of the 102nd Congress: “A lot of people here want it both ways. If it works, they want to be with the president. If not, they want to be against him.”
The president might have seized the reins from Congress on war making, but Congress wasn’t exactly fighting to seize them back. The country was split and every member of the House and Senate knew it. Polling data showed that about half the country was for a full-out military invasion in the Persian Gulf, and about half against it. Closer inspection showed ambivalence on either side of the ledger. A woman whose husband had already been deployed told a newspaper reporter in the first week of January 1991 that she was torn. “I’m not sure we have negotiated enough,” she said. “I support our troops, and I certainly support my husband. And I keep to myself in my letters and our few phone calls what I really feel.”
“I want to be a good citizen and support our country,” a cleaning lady in Mississippi told the same reporter. “But I keep waiting for somebody to explain to me why we are over there and whether it’s worth it. I still don’t know, and it’s been going on for months. I’m afraid we might be headed for another Vietnam.”
Anecdotal evidence like that, and a mountain of polling data, made clear that calculating the politics of the Gulf War was as complicated as calculating its merits. But that made things simple for much of Congress; they were hoping to stay on the sidelines and pick a side after the fact. They were willing to cede the decision to Bush, and let him take the heat (or the greater share of the glory)—willing, in effect, to allow the country to once again drift into war without the constitutionally required debate and a formal national declaration. “Congress in recent decades has avoided its responsibility,” the Pulitzer Prize–winning columnist and longtime student of the Constitution Anthony Lewis wrote the day after Mitchell and Dole kicked the can down the road. “We have come very far toward the monarchical Presidency that Hamilton and Madison and the others feared. If a President on his own can take us into a war in the gulf, George III will be entitled to smile—wherever he is. The United States has lasted this long, free and strong, by respecting the constraints of law—of the Constitution. For President Bush to disrespect them now in the name of world order would be a disaster, for him and for us.”
Finally, at the eleventh hour, when war was all but inevitable anyway, the president and the Congress did the right thing in spite of themselves. Against the advice of Secretary of Defense Dick Cheney, who insisted that asking for any kind of congressional approval for a war in the Persian Gulf would set a “dangerous precedent” and “diminish the power” of the presidency, Bush made the ask… sort of. He didn’t want a formal declaration of war, but a congressional vote supporting the UN resolution to use “all means necessary” to remove Saddam from Kuwait—in other words, to support his war. “Such action would send the clearest possible message to Saddam Hussein that he must withdraw without condition or delay from Kuwait,” Bush wrote in his letter to Congress on January 8, 1991. “I am determined to do whatever is necessary to protect America’s security. I ask Congress to join with me in this task. I can think of no better way than for Congress to express its support for the President at this critical time.”
So in the few days before the UN deadline for Saddam to leave Kuwait (or else), Congress got down to business and formally considered the wisdom of unleashing a massive half-a-million-Americans-on-the-ground war in the Persian Gulf. With the president deriding their work as nothing more than a decision about whether or not to
