by Aaron Dollhausen

Created on: January 26, 2007   Last Updated: November 11, 2011

The President is able to make war without the approval of Congress, as the conflict in Iraq illustrates. The War Powers Act of 1973 states that:
"The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations."

This was written to restrain the broad powers the President has to make war as written in the Constitution:
"The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States"

However, the War Powers Act is flawed. It contains a loophole:
"The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only 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."

In item (1), above, of the War Powers Act "a declaration of war" can only be made by Congress as outlined in the Constitution:
"The Congress shall have power to...declare war."

However the President may make war by himself without the consent of Congress by
invoking his powers as Commander in Chief of the Armed Forces as outlined above in the War Powers Act:
"The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities...are exercised only pursuant to...(2) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces."

This loophole gives the President the power to make, but not declare, war.

In other words, the War Powers Act gives the President the power to make war without the consent of Congress. The War Powers act gives him this power as CinC only if item (2) is fulfilled.
This was the debate centered over whether or not Bush had the power to invade Iraq. Item (2) dictates that he does. But, since I am not a lawyer or lawmaker, I have to guess that he would have to prove the conditions of item (2) if the President would not want to appear as a dictator. Given the general unpopularity, at the time, of an invasion of Iraq, Bush wisely consulted Congress. But now, it seems that general opinion has shifted. There is less support for remaining in Iraq now than when Bush first broached the idea to the public and Congress early in 2003.

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