"From the frozen hills of Korea and the steaming jungles of Vietnam, to the grimy back streets of Baghdad and the rugged mountains of Afghanistan, thousands of Americans have been killed or wounded and billions of dollars spent on wars since 1950. The decisions to conduct each of these wars were made by Presidents, in the face of the explicit language and history assigning that power to Congress in the Constitution of 1787. When our newly independent nation struggled to form a more perfect union, Americans remembered their recent hatred of the British King and, at the Convention of 1787, worked to avoid creating a ruler with similar autocratic powers. The delegates thought they had done so starting on June 1 and continuing with thoughtful deliberation and recorded votes throughout the convention. But since 1950, the United States has been ordered into hostilities by the President, without war first being declared by Congress. This transfer of power was perpetuated by the silent abdication of the federal judiciary supposed to protect the balance of powers. This silence of the federal courts is equivalent to Edgar Allen Poe‘s The Purloined Letter and Arthur Conan Doyle‘s Silver Blaze."

You have the right to influence the decision on whether the nation goes to war - by influencing your elected representatives in Congress - your member of the House and your two Senators. The decision to go to war is not supposed to be made without the votes of your members of Congress.

The man or woman who goes to Washington from your district or state (the Senators and the House Member who will be returning someday to your community - probably in search of campaign funds, volunteers and re-election from you) is supposed to make the decision on whether the Nation goes to war, and then cast a vote knowing that he or she may be held accountable by you.

It is so you can influence the decision on whether there is a war that will, inevitably, involve you - through your community sending members to be put in harm's way, families making the ultimate sacrifice, and taxpayers facing higher taxes - that the decision to put the entire country at risk of war is to be made by the People, through their elected representatives:

• The Constitution says so (Art. I, Sect. 8).
  On June 1, 1787, the delegates to the Constitutional Convention in Philadelphia voted twice on this matter. To paraphrase:
  1. The Congress would have the power to make the decision for war, and
  2. The Congress could not delegate the authority to decide on war to the President.
• Early Congresses passed laws declaring, and delineating, the scope of war.
• George Washington (who presided over the Constitutional Convention in 1787 and helped form the features of the executive branch as the first person to fill the office of President of the United States), thought it was best for the Country (click and scroll to see GW's Farewell Address). Other early presidents also tried to abide by the will of the Congress.
• Early Supreme Court decisions, including one written by George Washington's nephew, Justice Bushrod Washington, enforced this idea:
  The decision to go to war, and the extent of US involvement in a war, are to be decided by Congress.

Despite the words of the Constitution, the history of the Convention and the ratification process, and the only Supreme Court cases on this issue, Presidents have been ordering the military into action, without a prior Declaration from Congress, since the start of the Cold War. For more than half a century, the United States has been taken to war by the President.

The legal formula to evade the Constitution is called an "Authorization to Use Military Force" (AUMF). The Congress passes a statute seeming to give authority to the President to make the decision, as he determines. Rather than enforcing the Constitution by informing the Congress of its obligation to make that determination, the lower Federal courts - from the Vietnam War era through the most recent war in Iraq - supported this formula. So far, modern Supreme Courts have refused to review this matter.

“If the Academy is interested in having an influence on the practice of law and the development of law, it would be wise to sort of stop and think: Is this area of research going to be of help to anyone other than other academics?”

~ Supreme Court Chief Justice John Roberts, Saturday, June 25, 2011, the 4th Circuit court of appeals 77th annual judicial conference, Greenbrier Resort, White Sulphur Springs, WV.

This academic law review article proposes to correct errors of the federal judiciary in misinterpreting the question of "who decides on war." The question will undoubtedly come before the courts again, as it has many times since the beginning of the Vietnam War. This article is a reminder that judges and lawyers are capable of error in constitutional interpretation that affects our most vital interests. The importance of June 1 at the Constitutional Convention has already been ignored by a Federal District Court, the Third Circuit, and the United States Supreme Court. This law review article offers help to often overworked lawyers and judges by reviewing the precedents and underlying foundation of stopping and thinking – deliberating – on the wisdom and necessity for declaring war that has developed since the formation of our country.

As this law review article was going to publication, at the end of July, 2011, the nation was focused on the Congress and whether the House and the Senate would be able to come to terms with a bill that was about to come due. The United States almost ran out of money to meet its obligations. Would the House Republicans continue to refuse to increase the debt limit - or work with House Democrats to pass a bill that would raise the debt limit to pay for items the Congress had already agreed to fund? Would the House Republicans continue to insist on a Balanced Budget Amendment to the Constitution, or work with House Democrats to arrive at a compromise that would still enable future Congresses to Declare War, and pay for it, if necessary for the survival of the country?

This was about the only story on the news, for weeks. This was the kind of intense focus that the framers of the Constitution expected voters to bring to bear upon their elected representatives.

"The legislature . . . will be obliged . . . to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents." ~~ Alexander Hamilton, THE FEDERALIST NO. 26 at 141 (Alexander Hamilton) (J.R. Pole ed., 2005). (See p. 435 of the downloadable law review article.)

Perhaps, if the nation had been more focused on the costs of war, and demanded that their elected representatives investigate ways of paying those costs - including realistic appraisals of, and means to regulate and enforce, Administration prognostications that Iraqi oil would pay for the Iraqi war - before the Congress took roll-call votes on a declaration of war directing the President to send our troops into Afghanistan or Iraq during the 2000's, then the nation might be more tolerant of having to pay the enormous bill for war now.

Instead, many in the nation have become impatient with the devastating deficits that came from fighting two wars initiated at the determination of the President during an administration when the President was insisting on cutting the government's income by reducing taxes for the wealthy.

In 2010, the costs of war were:

• Afghanistan: $117 billion
• Iraq: $46 billion, and
• The cumulative costs of the two wars was: $1 trillion.
  (http://www.usatoday.com/news/military/2010-05-12-afghan_N.htm).

In comparison, the United States entered World War II after the brutal air attack on Pearl Harbor. The House met and the Senate met. Representatives in both houses put their careers on the line by casting roll-call votes. The result was to declare war against Japan, on December 8, 1941 at 4:10 pm, EST. These were the words that the House and Senate agreed on: "the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial Government of Japan; and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States."

Later, when both houses of the Congress determined that the scope of the war had to be expanded, additional declarations were passed by roll-call vote. The declaration to fight against Germany, for example, included the same language: "the President is hereby authorized and directed to employ the entire naval and military forces of the government to carry on war against the Government of Germany; and to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States." (http://warpower.us/declarations.htm)

Nothing was left to the discretion of the President about whether the country would go to war. The President was "authorized and directed" to carry on the war.

Were the elected representatives concerned about the costs? Yes. They considered what it would take and decided to pledge "all of the resources of the country" to win.

According to USA Today, the need to pay for war pushed government spending: "By 1945, the U.S. debt was 121.7% of GDP, vs. an estimated 70% today..." The response was

• rationing,
• price controls, and
• increased taxation.

"The top income tax rate in 1929 was 24%, starting at $100,000 — which is the equivalent of $1.3 million today. The top rate rose sharply in 1932 to 63%, but it was levied on income above an inflation-adjusted $15.8 million. By 1944, however, the top rate soared to 94%, starting at today's equivalent of $2.4 million."

There was little unemployment as - to generalize - men went off to war and women went to the factory floor. Today, despite fighting two wars for almost a decade, many members of the US community are in a constant state of unemployment. One aspect of this economic situation, that is litttle talked about by politicians, journalists, and analysts in the media is that the government could, in the near future, pay down the deficit with greater tax revenues - not from the rich, as the House Republicans staunchly object to taxing the rich - but from an expanded base of taxpaying workers. How do we do that? Another war has been one of the historical answers, but war does not seem to reduce unemployment in the 21st century. Short of war, we could (1) incentivize the private employment market by offering employer/taxpayers forgiveness on some of their taxes if they create new permanent jobs now, and maintain them for a minimum of 3 years, (2) raise the debt limit to meet all current and future obligations incurred by the Congress, and (3) create a commission to study the entire US Tax Code, with the goal of offering a revamped tax structure for the Congress to consider in 2014. This would solve the immediate problem, ensure that the members of Congress will pay the bills for the programs they legislate, and enable us to have time to rationally deliberate on the tough moral and political issues before us as we move into the era beyond the Afghan and Iraq wars.

* The title of this case was changed by the District Court to NJPA, et al v. Obama, to reflect the election of Barack Obama as President of the United States.