And now, McDermott's taking the president to court over it.

It is in Article 1, Section 8, Clause 11 of the U.S. Constitution: only Congress has the power to declare war.

"The president is going around saying he's going to take us to war and he'll decide when we'll go to war," McDermott said. "But that simply is unconstitutional."

McDermott and five other representatives want an immediate court injunction against military action in Iraq.

The other members of Congress named as plaintiffs are: Dennis Kucinich, D-Ohio; Jesse Jackson Jr., D-Ill.; Rep. John Conyers, D-Mich; Jose Serrano, D-N.Y.; and Sheila Jackson Lee, D-Texas.

Other plaintiffs include a member of the Massachusetts National Guard who was recently activated, an Air Force reservist from Massachusetts, and a Marine stationed in the Persian Gulf, Bonifaz said. Their identities were not released.

"In this instance, we are doing a pre-emptive war where we have not been attacked where there is no imminent danger to the United States and the President just wants to go to war," McDermott said.

U.S. District Judge Joseph Tauro agreed late Thursday to hold an expedited hearing Feb. 20 on the injunction request.

But University of Washington law professor Stewart Jay says the courts have refused to rule on past cases like McDermott's.

"The lawsuit has no chance whatsoever of succeeding," Jay said.

But there's another reason he thinks it will fail. Congress has not used its war powers since World War II.

"Modern practice however places that power in the hands of the executive," Jay said.

In Vietnam, President Lyndon Johnson never did ask for a declaration of war.

And Korea was never officially a "war". President Truman took America into battle for what everyone called a "police action."

Time after time, Congress allowed a president to act without a vote. But McDermott argues it's time for that to end.

"He'll have to come back to us," McDermott said. "We'll have a debate and we'll let people vote on whether they want to declare war."