Comparative Analysis of Ending a War Against the Will of the Executive in the United States and United Kingdom

Author:Nate Willems
Position:J.D. anticipated May 2007, The University of Iowa College of Law.

I Road to War and Relevance of the Topic- II Comparisons of the two Systems-Structural and Functional Differences- III Confronting Executive Leadership on war Powers: Similarities Between America and Britain - IV Confronting Executive Leadership on war Powers: Differences in form with Practical Similarities Between America and Britain- V Confronting Executive Leadership on war Powers:... (see full summary)


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I Road to war and Relevance of the Topic

Since 2001, President George W. Bush has aggressively committed the United States to fight a war on terrorism.1 President Bush created the Department of Homeland Security, gave law enforcement greater surveillance powers through the Patriot Act, and invaded Afghanistan to topple a government that supported and harbored terrorists.2 Perhaps Page 402 the most noteworthy and controversial part of President Bush's agenda, however, continues to be his decision to invade Iraq and overthrow its government.3

The United States was not alone in its invasion of Iraq; the White House claimed a coalition of forty-nine other nations contributing a wide variety of military and non-military assistance to complement 150,000 American troops in the invasion and occupation.4 In supporting the American-led coalition, no country has played a greater role in this war than Great Britain and Prime Minister Tony Blair. Combined, the United States and Great Britain provided nearly all of the meaningful military force in Operation Iraqi Freedom.5

Over the course of 2002, President Bush met with Prime Minister Blair on repeated occasions in order to secure British support for an American-led effort to invade Iraq.6 To earn the political and military support of Britain, Blair required Bush to seek a United Nations (U.N.) resolution before the British government would use force against Iraq.7

After intense American lobbying, the U.N. Security Council passed Resolution 1441 in November of 2002.8

Resolution 1441 called on Iraq to allow U.N. inspectors free and full access to investigate suspected weapons production facilities and threatened "serious consequences" for continued violation of this and prior resolutions.9 Although enforcement of Resolution 1441 by the United Nations was effectively precluded when France and Russia threatened a veto in the Security Council, Bush led a drive to build a Page 403 "coalition of the willing," made up of nations committed to using force to remove Hussein from power.10

In committing the United States to invasion, Bush acted pursuant to authorization given by Congress in October of 2002, under the War Powers Resolution (WPR),11 to enforce U.N. Resolution 1441.12 Though the power of royal prerogative by itself enabled Blair to send Great Britain to war alongside the United States, the Prime Minister received an endorsement of his decision by the House of Commons in March 2003.13

Two-and-a-half years later, the two principal aggressor nations-the United States and the United Kingdom-have successfully occupied Iraq, deposed former Iraqi President Saddam Hussein, and are currently in the process of assisting the Iraqi people in the creation of democratic institutions. Furthermore, despite mounting casualties in Iraq14 and domestic anti-war sentiment in both America and Britain, both leaders have successfully sought re-election as the head of their respective governments.15 Widespread opposition to continued occupation, however, remains a powerful political dynamic in each country. Public opinion polls show that a majority of citizens in both countries believe it was a mistake to invade Iraq, and a sizeable percentage express support for ending the occupation.16 Discontent with the war in Iraq played a large Page 404 role in the defeats suffered by the American President's party in the 2006 midterm elections.17

Given the commitment of both leaders to "stay the course" in Iraq, this Note examines the future sustainability of this undeclared war in both legal and policy contexts.18 This Note does not debate legal questions surrounding how the United States and United Kingdom arrived in the present situation in Iraq, nor does it closely examine secondary issues such as prisoner abuse and detention. It does, however, examine and compare the alternatives that may exist within the American and British systems of government to bypass the executive and remove troops from an armed conflict.

This Note argues that the United States has more institutional checks on executive war powers than the United Kingdom. In practice, however, it is unclear that these checks actually facilitate the termination of American involvement in a war. The importance of politics and political parties are effectively intertwined with institutional checks and play an independent role that may be as powerful as the distinctive characteristics of each governmental system. The availability of legal and institutional tools to end a war in either country is irrelevant without individuals willing to risk their own credibility and careers. Both the United States and the United Kingdom depend on the courage of legislators to stand up to their head of government in order to end their nation's participation in an undeclared war.

II Comparisons of the two Systems-Structural and Functional Differences

At least in form, profound differences exist between the American and British systems of government in the ability of legislators, courts, or other governmental actors to curtail the executive's war-making powers.

On the surface, it appears that the American President is subject to more checks on his war-making power than the British Prime Minister. In order to understand the variation, it is necessary to examine the major differences between the systems of government, as applicable to the war- making powers.

The British Constitution is not codified, and it has existed as a form of democratic evolution defined by the characteristic of parliamentary Page 405 sovereignty. No document binds Parliament in making law.19 Technically, the British Queen must assent to all acts of Parliament before they become law; in practice, no monarch has refused to do so since 1707.20

The House of Lords is the upper chamber of Parliament; however, it only has the power to delay an act of the lower chamber-the House of Commons-from becoming law for one year.21 British courts may exercise judicial review over delegations of legislative authority, but no court can declare an act of Parliament unconstitutional.22

Thus, in practice, Britain is led by the head of the House of Commons-the Prime Minister. Although the monarch is the titular head of state, the Prime Minister is the head of government.23 The Prime Minister leads the body in which, "effectively, all constitutional power resides,"24 and leads a cabinet of ministers which carry out the nation's laws.25 In addition to leading Her Majesty's Government, the Prime Minister is also the head of his political party.26 When the Prime Minister acts with the full support of his party-presumably a majority of the House of Commons-his ability to make law is virtually unlimited.

The United States Constitution is codified, and establishes a government based, in part, on the principle of checks and balances. The voters effectively elect the President; he leads the government, executes the laws, is the Commander-in-Chief of the Armed Forces, and sets the nation's foreign policy agenda.27 Informally, the President is also the leader of his political party. The President may propose and advocate legislation, but he is not a legislator and has no legislative powers.

Congress is elected independently of the President. It is composed of two chambers, which have the authority to write the nation's laws, formally declare war, ratify treaties, establish rules to govern the Page 406military, and appropriate money for the functioning of the government.28

The Supreme Court, appointed by the President and confirmed by the U.S. Senate, is the final arbiter of all conflicts of law, including disputes between the legislature and the executive.29 The Court has the power to declare laws or acts of the President or Congress unconstitutional and void.30

By nature of the structure of the two systems, the British Prime Minister is in a superior position to the American President to pass legislation he wishes to see implemented. The American President must depend on Congress to pass items on his legislative agenda and is subject to the limitations of a codified constitution which the Supreme Court may interpret to invalidate specific statutes. Thus, the President is checked by both a legislature and judiciary. Conversely, the Prime Minister is both a legislator and an executive. He is the leader of the relevant sources of governmental power.

The superior position of the Prime Minister to create law, vis--vis the President, is even greater when one compares the organization and operations of the respective legislatures. The organization and function of Parliament inherently provide the Prime Minister with considerable control over individual members. In Britain, local party leaders select their candidates for the general election to the House of Commons.31

Since most electoral constituencies are considered "safe," almost certain to be won by a particular party, these local party leaders effectively decide who will be their Member of Parliament (MP).32 The local party machinery has the ability to deny "re-selection"...

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