We hear a lot about how the war in Iraq is illegal and unconstitutional. What's interesting is that no one's risen to actually make this legal claim. It seems as if they'd have good grounds.
Back in the '30s, the Supremes voided a lot of the early New Deal on the grounds that Congress was improperly, and unconstitutionally, delegating legislative power to the executive in the blank check that early New Deal legislation gave to the White House to write and enforce rules and regulations. Congress is charged with being the lawmaking body, the Court held, whether it likes it or not.
Out of these holdings arose the arcane world of Administrative Law, which generally sez that Congress can ask executive agencies to flesh out laws, such as the galactic-sized body of regs attached to the Internal Revenue Code, but only under clear laws providing specific goals, ends and what not. To this day, the standard and sometimes successful challenge to administrative regulations is that they constitute an unconstitutional delegation of constitutional legislative authority.
Congress clearly has the specific charge to declare war, for the reasons you cited. I see no reason that a court couldn't hold that, as with domestic legislation, Congress has a duty here it can't cravenly pass on to the executive branch. As I said, I'm surprised that no one's tested this. One might argue that the court has traditionally shied away from foreign policy concerns, and might see this as a "political question." But perhaps not.
The companion constitutional question is whether a declaration of war is necessary to wage war. Even Jefferson fight a personal little war without bothering Congress. But there's a difference between mounting a punitive raid and waging a full-fledged, commit-the-resources war. The Founders definitely had the latter in mind when they gave Congress its specific charge. Iraq is definitely the latter. If any of our modern wars cried out for a declaration, Iraq, a war of choice, not immediate or necessary reprisal, qualified.
Maybe one day Ramsey Clark will stop calling for the impeachment of everyone short of Jesus Christ and pull out some of old law books to give this idea a whirl. I'll be the first to send him a check to help cover costs.
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You want the Supreme Court to rule on constitutionality of the Iraq war?...Like it rules on the constitutionality of a law? Oh man, let's open a huge can-o-worms. What would we do it they ruled it unconstitutional - turn over the retreat to the judges? I can see it now. "Rehquist has ordered the 3rd Calvery division to pull back to the Salifah - Tikrit line until Scalia decides what to do with the airbase north of Bagdad." What silliness you propose. I say that the Supreme Court has already overstepped its bounds. We have a judiciary that is out of control, with few restraints. It was unconstitutional for the federal courts to take over the school system and prison system in Texas. If the Supreme Court becomes any more activist than it is now, there will be a backlash. The Wall Street Journal on Friday called for a constitutional amendment to limit the appointees to 18 year terms, with a new judge appointed every 2 years. Lifetime appointments are not working, they say.
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