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Both Obama and Clinton Miss the Point on Iraq

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Throughout the race for the Democratic Party presidential nomination, Barack Obama has taken Hillary Clinton to task for her 2002 vote authorizing President Bush to attack Iraq. Obama says that Clinton’s vote reflected poor judgment on her part.

Clinton has claimed that when she voted in favor of the authorization, she never imagined that President Bush would actually use it go to war. She thought it was only going to be used for negotiating purposes to encourage Saddam Hussein to “disarm.”

Both Obama and Clinton miss the real point, however—the Constitution, and specifically that portion of the Constitution relating to the powers to declare war and wage war.

We should remind ourselves, first and foremost, what the Constitution actually is. The Constitution is a set of rules that the American citizenry have imposed on the federal government (and the state governments). Just as federal officials impose laws on us, we have imposed a law on them, which is the Constitution. Just as we are expected to obey their laws, they are expected to obey our law.

In addition to setting up the federal government, the Constitution establishes the powers that can be exercised by each of the three branches of government. The Constitution enumerates the powers for each branch. If a power isn’t enumerated, then it cannot legally be exercised.

By the same token, a power delegated to one branch of government cannot be delegated to another branch of government. The power belongs only to the branch of government to which it has been delegated in the Constitution.

With respect to war, the Constitution delegates to the president the power to wage war. However, it delegates to Congress the power to declare war.

What’s the difference between these two powers? The power to declare war is the power to decide whether to go to war or not. Under the Constitution, the president cannot legally wage war against another nation unless Congress first declares war. Again, that’s the law of the land — the law that the American people have imposed on the president, the Congress, the judiciary, and all of their subordinates.

Why did the Framers divide the power to declare war and the power to wage war? Because they didn’t want the president making the decision to go to war. They knew that throughout history rulers have gone to war for the stupidest of reasons, including pride and hubris, and thus they wanted the decision to be made by Congress, the elected body of representatives of the people.

The Iraq War is a perfect example of what the Framers were trying to protect us from. In the build-up to the 2002 invasion, President Bush scared the American people half to death with the prospect that Saddam Hussein was about to unleash WMDs on the United States. “Saddam must disarm!” he repeatedly cried. Alternatively, he argued, the United States should go to war in order to spread democracy in the Middle East. Alternatively, he suggested, there was an al-Qaeda-Saddam link. As Americans are slowly discovering, all of the president’s rationales for going to war have turned out to be bogus.

Hillary Clinton, along with many Americans, argued the importance of placing our faith and trust in the president. “He knows best. He’s got information that we’re not privy to. He would never lie to us.”

Those who made such an argument forgot one important thing: the Constitution, and specifically the part dealing with declaring war. Under the law, President Bush’s judgment on invading Iraq was quite irrelevant, except as a factor that Congress could have taken into consideration in deciding whether to declare war on Iraq.

The law required President Bush to go to Congress and request a declaration of war against Iraq. When Congress convened, the president would have had ample opportunity to make his case for declaring war on Iraq. By the same token, the members of Congress would have had ample opportunity to show that the president’s reasons for going to war were bogus and that all he wanted to do was to effect a regime change in Iraq.

Would Congress have declared war after hearing the president make his case for war? It is impossible to know, but it is entirely possible that the president’s case for going to war might have collapsed like a house of cards under close scrutiny by a few conscientious members of Congress. What we do know is that by declaring war himself, President Bush violated the law — the supreme law of the land that the American people have imposed on him.

But Clinton and the other members of Congress also violated the Constitution as well as and the trust that Americans have place in them as members of Congress. With their vote authorizing the president to decide whether go to war, they essentially said, “Mr. President. We know that it’s our responsibility under the Constitution to decide whether to declare war. But that’s going to be a tough call, especially in an election year. We want you to make the decision. Therefore, we are authorizing you to decide whether the nation is going to war against Iraq.”

Yet, under the Constitution the Congress is precluded from delegating its power to declare war to the president. Therefore, the congressional vote authorizing President Bush to make such a determination was illegal under our form of government. (By the way, it was also quite cowardly.)

Obama’s beef is that the president exercised bad judgment in going to war on Iraq. Clinton’s response is that she didn’t realize that the president would exercise bad judgment after she authorized him to exercise his judgment. What neither of them get is that under our system of government, the issue of going to war against Iraq does not depend on the judgment of the president but rather on the judgment of Congress. This is where Obama, Clinton, McCain, and other members of Congress failed America.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.