Talk:Iraq Resolution

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–Powers cannot be transfered between branches of government without a constitutional ammendment. (separation of powers) There was no constitutional ammendment, therefore power was not transfered between branches of government. This resolution pretended to authorize the transfer of power between branches of government (specifically, the power to declare war, from the legislative to executive branch), but did not ammend the constitution. Resolutions that authorize acts that the constitution prohibits are ipso facto unconstitutional and ipso facto invalid. Therefore, this resolution is unconstitutional. This is an important fact, and should be mentioned in the article.

Furthermore, since the resolution was thus invalid, power to declare war was never legally transfered to the president, and thus, technically speaking, war was never declared (at least not under the authority of the United States)! Kevin Baas 20:46, 2004 Jun 18 (UTC)

I don't agree with you. Only US Courts are entitiled to declare US laws unconstitutional. Until now, no one has chanllenged this law before any US courts, therefore this law remains valid until declared unconstitutional by courts.

That's not the way rule of law works. Kevin Baas^{talk: new} 16:41, 2005 May 10 (UTC)

That is the way the process of law works. Besides, this joint resolution doesn't "transfer powers" in that sense. It merely authorizes the administration as required by the War Powers Resolution. -- Randy2063 02:37, 8 Jun 2005 (UTC)

There are two separate questions:

• How much fighting can the President do around the world without a good old fashioned formal declaration of war?
• Under what circumstances, does the US have the right to suspend habeus corpus for US citizens within the US, and other controversial things?

My thinking, and I'm certainly no expert, is that:

There is no formal declaration of war in effect. Congress can't delegate war-declaration powers even if it wanted to. Congress doesn't authorize wars, the Constitution does. The Constitution only authorizes war if Congress makes a formal declaration of war. The War Powers Act explicitly refers to the President trying to obtaining a formal declaration of war at some point after the start of hostilities, (among other possibilities), in certain situations. Therefore, even the War Powers Act clearly announces that it doesn't pretend to try to 'delegate' war-declaring powers to anybody. The President may well be able to use force, but he can't call it 'war', at least not in the sense used in the Constitution.

(Apologies, this isn't quite relevant to this article) The right to suspend habeus corpus discussed in Article 1, section 9, only applies in case of rebellion or invasion. I don't see how such an Article is relevant now, unless you count Sep 11 as an 'invasion'. But even then, it could be argued that the invasion is now over. Or even that 'invade' in the sense of invade relevant to this Article only applies to sovereign states invading each other. Anyway, wiretaps seem illegal to me.

I'm not aware of there being any specific rights granted in the Constitution by the existence of a declaration of war (such as a right to suspend habeus corpus). In a sense, it may just be a useless formality, at least in terms of domestic US laws. But see the next point...

Therefore, the only question remaining is whether or not the Iraq hostilities are effectively warlike and require a formal declaration of war.

And another point, surely if the Supreme Court strikes down a law it's saying that it was never valid. Which is more serious than just saying that it is no longer valid. i.e. If the Supremes rule that the Iraq hostilities were a war and required a formal declaration, then the President has been in breach of the Constitution for the last few years. But anyway, the War Powers Act doesn't even purport to delegate war-declaring powers, so it may not even be relevant. Why should Congress authorize non-war force when the President already had that power anyway?

I'm not a lawyer, and I'm not even an American, but I have to laugh at many Americans, who cannot separate the discussion over whether something is legal from the discussion of whether you like it. Next thing you'll be saying that rain in unconstitutional, just because you don't like it. Aaron McDaid 12:22, 26 January 2006 (UTC)

The First Circuit Court of Appeals already ruled stating "...the text of the October Resolution itself spells out justifications for a war and frames itself as an 'authorization' of such a war." it went on to state "The court found that other actions by Congress, such as continued appropriations to fund the war ... provided enough indication of congressional approval." A "declaration of war" is not necessary to fulfill the requirements of the constitution in the eyes of the court, as the constitution "envisages the joint participation of the Congress and the executive in determining the scale and duration of hostilities." and that is what HJ Res 114 goes onto accomplish.

Furthermore they stated:

"The Supreme Court recently and forcefully reiterated that, notwithstanding the Constitution's vesting of "all legislative power" in Congress, enactments which leave discretion to the executive branch are permissible as long as they offer some "intelligible principle" to guide that discretion."

So you see the courts have ruled and further upheld the ruling that there is no illegal transfer of power and that HJ Res 114 accomplishes for all purposes what a "declaration of war" accomplishes "a join participation of congress and the executive". --Zer0faults 20:25, 31 May 2006 (UTC)

The Supreme Court's ruling to uphold the October Resolution on the grounds that a "declaration of war" accomplishes "a join participation of congress and the executive" is fallacious on its merits. The Constitution has no mention of "joint participation" when commiting American Forces to attack another country. Article 1, Section 8 clearly assigns the power to declare war to Congress and Congress alone!

The participation between Congress and the President in the declaration and conduct of war is rather simple: Congress declares war and the President conducts the war as Commander in Chief.

This "intelligible principle" is quite understandable in the context of "American" thought during the Constitutional Congress of 1787.

The American Revolution was a rejection of Monarchy and any notion that one man or small group of men could take the nation to war, undeniably the most grave responsibility of any Government.

The Founders were quite clear that only a body of legislators and exhaustive debate, if necessary, should commit an entire nation to war. The awesome power to go to war was bestowed upon Congress...the balance of powers doctrine then transfered the authority over the United States Armed Forces to the President in time of war.

It is not a coincidence that since the last declaration(s) of war which brought the United States into World War II, each military conflict including and since the Korean "Conflict' has resulted in failure. It is likely that had the Constitutional power to declare war by Congress been adhered to, thus restraining the power of the President to engage the United States Armed forces against another sovereign nation, the United States would have avoided both an unnecessary war and the failure that resulted.

So is the case with George Bush's War in Iraq.

One thing we learn from history is that we seldom learn from history and, therefore, are doomed to relive the consequences.

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I've found a source (below) which claims a 'resolution' isn't really a law, its more of a congressional 'poll'. Can any legal scholars shed some light on whether a resolution is really a law?

http://www.truthaboutwar.org/claim3.shtml