According to the Constitution, Congress has the power to declare war, though it does not explain what format or what kind of legislation is necessary for declaring wars. Although Congress has only formally declared war five times — the last time being World War II –many constitutionalists believe that this is the only legal way for the nation to engage in war and that every battle begun directly under the authority of the president was unconstitutional.

Based on this, Bush’s Authorization for Use of Military Force Against Iraq Resolution of 2002 was challenged by a coalition of U.S. soldiers, parents of U.S. soldiers, and members of Congress prior to the invasion to stop it from happening in the case of Doe vs. Bush. The First Circuit Court of Appeals ruled in favor of Bush, with
Judge Lynch pointing out that, “They base this argument on two theories. They argue that Congress and the President are in collision — that the President is about to act in violation of the October Resolution. They also argue that Congress and the President are in collusion — that Congress has handed over to the President its exclusive power to declare war.”

I’ve been hearing the argument for a Congressional declaration of war a lot lately from liberals, including one of my favorite bloggers Glenn Greenwald, who correctly pointed out that Obama himself said that the president in fact does not have the right to declare war unless the United States is at risk.

The reason I’ve never jumped on to this argument is that the members of Congress obviously don’t want to be the ones to declare war. Ezra Klein of the Washington Post explains as much. That may be a sad state of affairs, but even if it is a Constitutional requirement, you can’t carry water for people who don’t want to drink. It reminds me of the “state’s rights” argument: you can complain that Federal power is taking state power away, but it never really causes anyone to argue that their beliefs should only be effectual in one state. If you’re Pro-Life, then you want abortion outlawed federally. If you’re Pro-Choice, you want abortion to be legal in all 50 states. So until Congress actually starts demanding the power to declare wars, it’s really just a tangent to the more important question of whether the particular war you’re talking about is a good or bad idea.