Cong power to authorize war against Iraq

[Martin Belsky]

As someone who served on this committee in the 1970's, it was then the
policy to use the necessary and proper clause -- without a tie to a
specific section.  There was then debate about whether to use the
Commerce Clause or the 14th Amendment, for some issues -- or the foreign
policy clauses, or Immigration Clause or war power or Commander in Chief
for other issues; or the Spending clause for still other issues.  So it
was left open for multiple interpretations- to avoid fights over who
within Congress will oversee and whtehr this is based on a legislative
or executive power, or just to give breadth for future arguments in court.

I can't speak for present practice -- but I'll bet that is the reason
[maybe even stronger now because of the present Court's attitude to the
Commerce Clasue and Section 5 of the 14th]

Alex Aleinikoff wrote:

> The House Report on the Joint Resolution authorizing use of force against Iraq includes
> the following "Constitutional Authority Statement":
>
> "Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House of Representatives,
> the Committee finds the authority for this legislation in article I, section 8, clause
> 18 of the Constitution."
>
> I have not examined these statements in this past.  Is it customary for the House to
> cite simply the necessary and proper clause, with no reference to a substantive power
> for which the legislation is a necessary and proper means?  Is this an attempt to avoid
> invoking the power to declare war?  Or, if such statements in House reports are normal,
> does the House operate with an understanding of the N & P clause as "freestanding"?
>
> I would also note that the dissenting views in the Report assert that the resolution's
> authorization of unilateral preemptive use of force without proof of imminent peril
> violates international law.  The point is not addressed by the Committee Report,
> although it does note that Iraq has violated Security Council Resolutions.  Should one
> infer from this that the House Committee believes that the international law issue is
> irrelevant to the question of congressional authority, that the issue is, in any event,
> trumped by the demands of national security, or that international law implicitly
> endorses unilateral state efforts to enforce international law ?
>
> Alex Aleinikoff
>
>


--
Martin H. Belsky
Dean and Professor of Law
University of Tulsa
    College  of Law
3120 E. 4th Place
Tulsa, OK 74104
918-631-2400
Fax - 918-631-3126
martin-belsky at utulsa.edu