Yeah, that's my argument, minus some bells and whistles, which I left out not to bore people with legalism. It hasn't been tested as far as I know, but the courts err on the side of giving the executive more rather than less power to conduct militray and foreign affairs, so I'd predict that if tested it would win.
I wish that I also thought it was constitutional for Congress to end undeclared wars. I'm not an originalist, but the framers certainly didn't contemplate the circumvention of Congress' power to declare war by the simple expedient of not declaring war. However there's another doctrine that says, in essence, long-unchallenged common practices _become_ constitutional, so my guess is that after almost 60 years, it's constitutional for the president to conduct undeclared wars, and Congress couldn't now bring the troops home on the grounds that there had never been a proper declaration of war.
These are more reasons Dan Lazare would hate the Constitution.
What Congress _can_ do, if it is serious about stopping the war, is cut funds. That's clearly constitutional and it is the litmus test for whether the Democrats have any intention of really doing what they were elected to do -- stop the war. (Hahaha.)
--- Michael Pollak <mpollak at panix.com> wrote:
>
> > The troops cannot be recalled by a simple
> Congressional joint resolution.
>
> Hmm. Now I'm a little lost. I thought everyone
> agrees that a successful
> joint resolution could withdraw the troops. That's
> something signed by a
> president with the same force of law as a bill.
>
> Weisberg says the War Powers Act has a provision for
> recalling troops by
> using a concurrent resolution (i.e., one not
> requiring presidential
> signature). And he's right about that, it does. As
> Michael Hoover points
> out, it's 5(c)
>
> <quote>
>
> SEC. 5. (c)
>
> Notwithstanding subsection (b), at any time that
> United States Armed Forces
> are engaged in hostilities outside the territory of
> the United States, its
> possessions and territories without a declaration of
> war or specific
> statutory authorization, such forces shall be
> removed by the President if
> the Congress so directs by concurrent resolution.
>
> <unquote>
>
> Michael H suggests that INS v. Chadha might have
> rendered this section
> unconstitutional. I'm not sure that's true; it
> certainly hasn't been
> specifically ever tested. But just to be clear,
> that's your argument too?
> That this section of the war powers act is
> unconstitutional?
>
> FWIW, Born's approach, IIUC, is slightly different:
> that congress, which the
> constitutiona clearly gives the power to declare war
> without the president,
> should declare it over.
>
> Michael
>
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