Who Decides Whether America Goes to War?

Because taking our country into war has the potential, if not the likelihood, even in modernwarfare, of costing the bodies and lives of American soldiers as well as disrupting the economy, this is an important question.

The Constitution is the guide to answering this question. The Constitution clearly states that Congress has the power to declare war. The President does not have that power.

The War Power Resolution of 1973, passed by Congress, recognizes that distribution of power by saying that a President can only order military into an existing or imminent hostility if Congress has declared war or specifically authorized the President to use military force, or there is a national emergency created by an attack on the U.S.

The drafters of the Constitution and the War Powers Resolution thus made a distinction between making a reasoned decision to go to war and having to react quickly when attacked.

The Executive Branch, however, has consistently held that this limitation on the President's power applies only to "full-scale" war.

So the question is, when is a war a war in the constitutional sense? Since this is a definitional issue, I would say that hostilities are a war in the constitutional sense when they are in the legal dictionary sense. If it looks like a war, if it sounds like a war, if it moves like a war, it is a war.

According to Black's Law Dictionary, war is "armed conflict by forces of sovereign powers." War does not exist merely by one nation attacking another, but when the other nation responds, whether by a declaration or otherwise, indicating it feels it is at war. War is a conflict.

Under that definition, we are definitely at war with Iran. Note that the legal definition of war has nothing to do with the size of the conflict or its duration. It also does not depend on the formal declaration of war.

So in the past, when the President has ordered U.S. forces to attack a country, and that country has not responded in kind, those instances have not been "war"—there has been no "conflict"—and so the President was within his powers in conducting the hostilities. Trump's actions against Venezuela would fall into this category. But when the attacked country has responded in kind, as is the case with Iran, then a state of war exists, regardless of the double talk engaged in by the Office of Legislative Council.

NOTE: The 1973 War Powers Resolution would restrict the President from initiating hostilities, even in a "non-war" situation in Venezuela. He could only engage in hostilities without authorization if the U.S. was attacked.

Conservative "originalist" legal scholars look to what the words in the Constitution meant at the time it was drafted. In the 17th and 18th centuries, war between European countries was not uncommon. They involved military conflict between 2 or more countries, usually to gain territory, and, in the early 18th century, over religion.

In those times, all countries were ruled by monarchs, and when countries went to war, it was specifically for the glory and financial benefit of the monarch. These wars caused much misery for the general population and were much on the minds of the Founders when the Constitution was drafted.

It was because of their knowledge of the religious wars that the Founders were adamant that there be a separation of church and state, that there be no established religion. And it was because of their knowledge of the arrogance of monarchs in going to war to obtain glory or riches at the cost of the lives and well-being of their people that the Founders wrote into the Constitution that only Congress had the authority to declare war; no longer would a single individual be able to wreak such havoc on the people. And indeed, initially, that is how the Constitution was interpreted.

The New York Times reported that Republicans in Congress have been tripping over themselves, determined not to call the conflict with Iran a war. Yet from what I've presented, it very clearly is war in the meaning of the Constitution, whether looked at from an originalist point of view or a contemporary one.

Clearly, here is yet another example of Trump violating the terms of the Constitution. And he clearly doesn't care. Not only that, but he also has not shown the deference to the American people that past Presidents have shown by speaking directly to the people and explaining why he was taking this serious step.

Once again, Trump's arrogance proves how prescient the Founders were in crafting the Constitution with a balance of power to prevent abuses by any branch of government. And that system has worked ... until now. It is only because the Republicans in Congress and many Trump-appointed members of the judiciary have violated their oath of office that the system is not working now and Trump's abuses of power go unchecked.

We live in a democratic republic. Laws are all determined by the legislature, as the representativeof the people. For the most part, the Executive Branch—including the President— must actwithin the bounds set forth in legislation unless power is granted directly by the Constitution.Going to war—committing both the lives of American soldiers and America's wealth—is aweighty decision that, unless we are attacked, should be made with great deliberation byCongress—as the representatives of the People—not a single person, even the President.. That iswhy the Constitution gives that power to Congress, not the President.

The American people, not just Democrats, must arise and voice their disapproval, both on the streets and at the ballot box.

Ronald L. Hirsch is a teacher, legal aid lawyer, survey researcher, nonprofit executive, consultant, composer, author, and volunteer. He is a graduate of Brown University and the University of Chicago Law School and the author of We Still Hold These Truths. Read more of his writing at www.PreservingAmericanValues.com

Editor's Note: This piece was originally published under the title of "Is the U.S. at 'War' with Iran?" The first few paragraphs and the second-to-last paragraph were also updated on 3/19 due to timeliness.