A reader writes:
I agree with you 100%. But I think war with Iran really would be different from the other recent failures to declare war.
Congress has managed to get out of its obligation to declare war in part because the post-WWII operations of the American military were - ostensibly or actually - either small operations not worth dignifying with the name of "war" (e.g., Grenada), or defensive operations undertaken pursuant to treaty obligations and/or explicit acts of Congress (e.g., Vietnam), or authorized by a supra-national body such that they arguably were *not* wars in a legal sense, but police actions (e.g., Korea, the first Iraq war).
The second Iraq war was an exception to the above, in that the United States initiated an aggressive attack on another country without either an explicit declaration of war or an emergency that required rapid response by the executive branch or an explicit authorization from a supra-national body to conduct a police action. But we could still rope Iraq back into the familiar categories under which Presidents have initiated hostilities by pointing out that America had been continuously in action in Iraq between 1991 and 2003 (enforcing the No-Fly Zone, for instance), and that Iraq had violated the terms of the 1991 cease-fire in a variety of ways, such that America still (arguably) had the authority to take action to enforce the terms of that cease-fire. Given those unique conditions, perhaps an "authorization" to use force such as Congress *did* pass was sufficient constitutional warrant for Executive action. This might seem tenuous, but it's not nothing.
Kossovo and, ironically, Afghanistan are much tougher to bring under the rubric of "traditional" exceptions. The war in Kossovo was not authorized by the U.N., and hence was not a police action; it was not a response to aggression against a NATO state, and hence was not pursuant to a treaty obligation, so the fact that it was a collective action on the part of the NATO alliance does nothing to add to its legal justification. As the legislature never declared war on Serbia, the Kossovo war was most likely unconstitutional. In Afghanistan, meanwhile, America - quite rightly - went to war in response to a surprise attack on American soils, and on civilians to boot. The war was about as just a war as could be imagined - but it was not undertaken in a constitutional manner because there was no declaration of war, when we were plainly *going* to war and there was plenty of time to issue a declaration. I note in this regard that President Bush was widely quoted at the time as having "declared war" on September 11th - by which he seems to have meant that he "recognized" that a state of war "existed" because we were attacked, but be that as it may: he used the language that the constitution explicitly reserves for the legislature.
War with Iran would mean crossing the last bridge, and would mean the final Caesarian transformation of the American Republic. There is, as you say, no chance that Congress would declare war on Iran. (Any "use of force" authorization by Congress would give them plausible deniability and hence would constitute an evasion of their constitutional responsibility, as you note; Congresscritters could perfectly well claim after the fact that they did *not* vote for war, but only to give the President the "freedom of action" to go to war *if necessary* which, the Congresscritters could assure us, the Congress had confidently hoped would be sufficient to *avert* war!)
There is also no chance that such an attack would be authorized by the U.N. as a police action, and hence (arguably) not require a formal declaration of war by Congress, but only an authorization to use force (since, after all, in such circumstances, there arguably was no state of war between America and the country in question, but rather a state of outlawry on the part of the country in question, with America playing the part of the head of the posse bringing the miscreant to justice). There is also no chance that the President could honestly articulate a reasonable justification for hasty action in the face of an imminent threat such as would leave no time for him to obtain a declaration from Congress. Hence, if we do attack Iran, a precedent will have been set that the President can go to war whenever and wherever he wants, without any authorization from anyone.
As it happens, I don't think we're going to war with Iran. I think Bush would face actual, public insubordination if he tried it. I also think he doesn't have time before November, and he won't have a compliant Congress after that to give him a fig-leaf of authorization. But I do agree that an undeclared war against Iran would be unconstitutional - and more plainly so than the other undeclared wars of the last 60 years.