Former New York governor Mario Cuomo has an op-ed in today's Los Angeles Times in which he discusses Congress' abdication of its authority to declare war. "Because the Constitution cannot be amended by persistent evasion, this constitutional mandate was not erased by the actions of timid Congresses since World War II that allowed eager presidents to start wars in Vietnam and elsewhere without a 'declaration' by Congress," he writes.

Art. I § 8 of the U.S. Constitution grants Congress -- and only Congress -- the power "[t]o declare war." Since the Constitution is not a document of exclusion (meaning the only powers the government has are those that are explicitly delineated), no other branch of government may declare war. Over the last forty years, says Cuomo, Congress has begun to abdicate its constitutional authority to declare war, through legislation such as the War Powers Act, which allows the president to place troops in combat for up to ninety days without a formal declaration of war. It's arguable that this legislation is unconstitutional, as the Constitution does not allow Congress to delegate these powers to anyone else.

Cuomo's analysis of the possible constitutional showdown is very good: if Congress were to resist Bush's calls for war, Bush would take the issue to the courts. While it may seem dastardly for Bush to insist that he has powers that are exactly contrary to the powers given to him in the Constitution, he has done things before that are just as outrageous, such as insisting that both he and Vice President Cheney are not subject to laws governing declassification of documents in the executive branch.

While Cuomo believes that the conservative-leaning Supreme Court would back up a Bush assertion that he has the power to send troops to war, I find this hard to believe. It's very clearly stated in the Constitution that only Congress has the power to declare war, and for the Supreme Court to suggest otherwise would be reprehensible and even more of a blow to their legitimacy. Nevertheless, Cuomo is right in that Congress needs to start enforcing its own obligations, because Bush's executive branch -- the branch that selectively enforces the laws that he agrees with -- certainly won't.