Article One, Section Eight of the U.S. Constitution says 'Congress shall have power to.. declare war'
That is all it says. No specific format or terminology is defined or specified, nor is the term "Declaration of War" found anywhere in the Constitution.
Furthermore, despite the constitutional requirement that Congress declare war, it does not require that a war must be declared. In practice, throughout history the United States has fought wars based on 'authorizations' and only used the term 'Declare War' at the specific request of the President.
The term 'Declaration of War' have been used for 5 events, the War of 1812, the Mexican-American War, the Spanish-American War, World War I, and World War II.
Authorized wars, not using the term 'declaration' date all the way back to the Quasi-War (1798) under President John Adams and continue with the First Barbary War (1801), Second Barbary War (1815), the Raid on Slave Trade (1820), Retaliation on Portugal (1859), Korea (1870), Philippine-American War (1898), Intervention in Russian Revolution (1918), Protection of Lebanon (1958), Viet-Nam (1964), Multinational force in Lebanon (1983), Invasion of Panama (1989), Persian Gulf War (1991), War in Afghanistan (2001), and the Iraq War (2002).
The Korean War was not authorized by the U.S. Congress, but was fought under authority of a United Nation resolution.
Congress, after World War II, limited its own power to 'Declare War' to using 'Authorizations of Force'.
The 'War Powers Resolution of 1973' limits the power of the President to wage war.
The act clearly defines how many soldiers can be deployed, and for how long without approval of Congress. The constitutionality of this act has never been decided, but with the sole exception of President Clinton's use of troops in the air campaign during the Kosovo War, all Presidents have received Congressional authorization as required under the act.
The wording of the Constitution and the historical actions of Congress indicate that any Act, either 'Declared' or 'Authorized', that provides funding and approves the use of deadly force meets the requirements of 'Legality' for the President of the United States to wage war.
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5 comments:
But can the President act without first going to Congress?
From a practical standpoint--
It can be reasoned that the Constitution grants full power to the President to wage war without prior approval of Congress.
The Constitution charges the President with the protection of the nation and its citizens. One can envision many scenarios in which to fulfill that obligation the President would need to act immediately. When the Constitution was enacted Congress was part-time and could takes days or weeks to convene. It doesn't seem reasonable that the Constitution would have tied the President's hands to act for that long. Today's long range weapons may require the President to act in minutes.
A current problem is that if an action needs to be made in secret, you can't tell Congress because the New York Times will publish the story faster that the Department of Defense can take action. Sadly, Congress leaks
everything.
The Constitution prohibits the states from engaging in war without the consent of Congress, unless the state is actually invaded or is in imminent danger. There are no such restrictions placed on the President
The Blog address for "Legal Declaration Of War" was forwarded to me on Christmas Eve by a colleague who thought it to be well written.
She and I are both law professors and practicing Constitutional attorneys.
The article is indeed well written and factually accurate.
One should note that only two of the first nine wars that were fought by the United States were "Declared" wars. The first declared war, as you point out, was the 'War of 1812'. In sequence, 'The War of 1812' was the third
Adams and Jefferson most certainly knew the Powers of the President as defined by the Constitution, yet neither had any qualms about fighting an "Undeclared" war.
Your reply to Alan (Comments) was also well reasoned.
Watch Dog,
We recently had a mock Supreme Court case.
The case was Ron Paul vs. George W. Bush. Ron Paul charged that Bush was engaged in an illegal, undeclared war.
I was chosen as the Presidents defense council, and the defense team was given 3 days to prepare our defense.
One of our team found this M&S argument. We decided to base our entire case using your argument supplemented with your argument in the comments section. The only addition was that we started our arguments by reading the entirety of Article 1.
We received a unanimous decision from the 9 Professors that acted as the judges.
We received a unanimous decision! Very rare in our law school.
Thank you!
I agree completely with the article, and the ever-crucial point in the comment section about state's being prohibited from "engaging in war" without the consent of Congress while the President has no such restriction. However, there is one confusing point in the article.
In only one of the roughly two hundred conflicts since the War Powers Resolution of 1973 has the President gone through the motions of complying with the Resolution by triggering the 90 day clock. In every other case, they have notified congress "consistent with the War Powers Resolution" without triggering the clock that is most likely unconstitutional, but almost certainly unenforceable since the Supremes will continue to avoid getting between the two branches under the political question doctrine.
They have not always received Congressional approval of the kind contemplated by the Resolution, however, Presidents have compensated by seeking generalized approval or by rushing to complete an unapproved action before the 90 clock runs (avoiding the Constitutional and political challenge to their action).
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