Congress and War

As we're seeing regarding Yugoslavia, and as we've seen regarding Iraq, Vietnam and any other U.S. military adventures since WWII, if the president wants to make a war, then darn it, he'll find some way to make a war whether Congress likes it or not. This begs the question: just what can't the president do without Congress's approval in this matter? Is it just the semantics of declaring another country to be an enemy of the U.S. specifically (rather than the U.N. or NATO), but as far as the combat goes, it doesn't make a difference? Or is there something concrete that Congress can stop the President from doing by withholding their approval?

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Chaim Mattis Keller
ckeller@schicktech.com

The new thing (I don't know if the word "war" would be appropriate since Congress didn't formally declare one) in Yugoslavia does suggest that, more than just our president, NATO (although U.S. led), can declare war without the consent of Congress.
Even though Clinton supports the effort and was instrumental in bringing NATO into this, one might ask another question: when the Congress opposed the Treaty of Versailles over Article X, which Congress thought took away from their war making powers, why was Congress willing to accept the NATO alliance when a similar possiblity of war existed. The answer would appear to be Cold War tensions, but couldn't the constitutionality of NATO's actions be challenged over grounds that the Congress has the power to declare war?
Any educated person can tell that I am in way over my head here, so it would be great if someone can enlighten me.

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"[He] beat his fist down upon the table and hurt his hand and became so
further enraged... that he beat his fist down upon the table even harder and
hurt his hand some more." -- Joseph Heller's Catch-22

Not my best subject area, but if the Prez technically requires Congressional action to declare war, and then does so without said action, seems like Congress could motion to impeach on the grounds of breaking whatever law applies.

Of course, we all know how successful impeachment hearing are when the public gets into a self-righteous let's go kick some country's ass mood.

This is a good, multifaceted, controversial question. Which means it belongs in the new Great Debates forum, not General Questions. Please click on the Hop to button below, switch to Great Debates, and add this topic to that forum's entries.

whitetho:

I'm not asking a controversial question, but a legal/factual one. My point is that it's been amply demonstrated over the past 50 years that a Congressional declaration of war is not necessary in order for a president to order U.S. troops into combat. My question is, what can a president not do without a Congressional declaration of war?

Is this really controversial? Seems more like a "General Question" to me.

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Chaim Mattis Keller
ckeller@schicktech.com

"Sherlock Holmes once said that once you have eliminated the
impossible, whatever remains, however improbable, must be
the answer. I, however, do not like to eliminate the impossible.
The impossible often has a kind of integrity to it that the merely
improbable lacks."
-- Douglas Adams's Dirk Gently, Holistic Detective

I'm suprised that no one has piped up with a definitive answer yet. There has to be someone here who knows the advantages/problems that come with a formal declaration of war.

I know that the president can't make appropriations independent of Congress, so money for buying new weapons or for paying soldiers could dry up if Congress didn't lend their help.

I would guess that there is more to a formal declaration of war than just appropriations tho.

The Constitution grants the Congress the power to DECLARE war. As CinC of the armed forces, the President has the power to WAGE war.

A declaration is legislative. The actual waging of war is executive. When Congress declares war it is in effect directing the executive to wage war. Unless the Congress specifically directs (through legislation) the executive not to wage war the President has the right to use his forces as he sees fit.

For all practical purposes the President can wage war in whatever way he sees fit with as little 1/3 of the Senate in support.

Undead Dude has reminded me to include the caveat: "As long as the money holds out."

As I recall, as Commander of the armed forces, the President can send our fighting men to anywhere he choses and have them shoot at anyone he wants (barring the obvious global reprecussions). However, as was mentioned, Congress holds the funding for combat. This doesn't mean that there's no funding though without a declaration of war: Congress is already allocating funds to the Yugoslavia 'conflict' without declaring war on the country. However, I'd imagine that with a formal declaration, the funds come a lot looser.

However, my memory might be a bit shabby. Congress refused to send the Apaches into combat recently, which seems to contridict what I just said. Can anyone clarify this? I also seem to remember there being a limit to how long the President can single-handedly man the armed forces before he needs some sort of Congressional approval (not a war declaration) such as 30 days or 90 days. Since Congress did vote to lend support to the conflict, this isn't a probelm now, although it might be why it was Congress' decision about the Apaches.

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"I guess it is possible for one person to make a difference, although most of the time they probably shouldn't."

Mental Note: Consult search engines before replying.

In 1973, legislation was passed that the President of the United States commands the armed forces totally only in either:
(A) A formal declaration of war or
(B) An emergancy situation such as an attack on the United States.

He does have the power to deploy troops for 60 days before he must consult Congress for further approval. Withing 48 hours of deploying troops, the President must formally address Congress informing them of his decision.

Further information may be found at:
http://www.citizensoldier.org/warpowers.html


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"I guess it is possible for one person to make a difference, although most of the time they probably shouldn't."

Jo is thinking of the "War Powers Act". It was passed in response to perceived abuses by LBJ and Nixon during the military actions in Southeast Asia. It's one of those laws that no one takes very seriously (at least not Congress or the President). I'm fuzzy on the details but I think what it reguires is more along the lines of "informing" Congress rather than getting "permission" from Congress.

Ya beat me to it!

The Constitution

Article I, Section 8:
"The Congress shall have Power To... declare War..."

Article II, Section 2:
"The President shall be Commander in Chief of the Army and Navy of the United States..."

The way these two powers relate, as I understand it, is that the president may constitutionally wage war only with congressional approval. But once that approval has been given, the president takes charge as the CinC, and Congress then has no tight to intervene in the waging of that war.


The War Powers Act

I'm afraid I don't have the text of this act handy, so I'll be speaking from memory. Basically, the act expands on the constitutional war powers provided to the president. It gives the prez the power to wage war -- without the consent of Congress -- for 60 days.

It was passed, IIRC, after the Vietnam "war" in order to allow the US to respond quickly to volatile world events, but prevent another fiasco of a lengthy conflict void of congressional consent.

So, since Congress has not declared war, and the bombing campaign is now more than 60 days old, it seems to me that President Clinton is on shaky legal footing.

Quite a few members of Congress agree; they believe the president is violating both the Constitution and the War Powers Act. Led by a California representative, a group of about 30 congresspeople are suing Clinton in federal court to force him to receive congressional approval before continuing the campaign.

Opus suggests Clinton's actions rise to an impeachable offense. That may be, but after our recent impeachment debacle, no one is seriously suggesting we pursue that route.


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~ Complacency is far more dangerous than outrage ~

I'm afraid I don't have the text of this act handy, so I'll be speaking from memory. Basically, the act expands on the constitutional war powers provided to the president. It gives the prez the power to wage war -- without the consent of Congress -- for 60 days.

I also do not have the actual act in front of me, but I think you're missing an important point. The War Powers Act was passed by Congress, so when the President uses military force under the terms of it, he does have the consent of Congress.

Granted some people (in and out of Congress) have argued that the War Powers Act is unconstitutional; i.e. that the intent of Article I, Section 8 was that Congress had to give specific consent to each individual military action, not a blanket consent to a group of potential future military actions. But at this point, no one has brought the matter before the Supreme Court.

STARK posted 06-02-99 04:53 PM CT
So, since Congress has not declared war, and the bombing campaign is now more than 60 days old, it seems to me that President Clinton is on shaky legal footing.

Since Congress recently passed Clinton's request for more funding (in fact, almost doubled his request), would that not constitute implicit permission to continue? One thing a declaration of war would do is to open the possibility of the draft, and I don't think the American people would go for that.

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The overwhelming majority of people have more than the average (mean) number of legs. -- E. Grebenik

Doctor Jackson:

One thing a declaration of war would do is to open the possibility of the draft

We had a draft in Vietnam without a formal declaration of war. I think I already got the answer I was looking for...that a Congressional declaration of war is necessary for the President to command the armed forces into combat without explicit Congressional permission for a time period greater than 60 days.

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Chaim Mattis Keller
ckeller@schicktech.com

"Sherlock Holmes once said that once you have eliminated the
impossible, whatever remains, however improbable, must be
the answer. I, however, do not like to eliminate the impossible.
The impossible often has a kind of integrity to it that the merely improbable lacks."
-- Douglas Adams's Dirk Gently, Holistic Detective

Mike, I'm afraid I don't quite understand your point about my missing the point. You said:

I also do not have the actual act in front of me, but I think you're missing an important point. The War Powers Act was passed by Congress, so when the President uses military force under the terms of it, he does have the consent of Congress. -- Mike King

I understand that when acting under the terms of the WPA, the president is indeed acting with the prior approval of Congress, rather than the current approval of Congress. The WPA (unconstitutional though it may be) says this is fine.

It is only after those 60 days granted in the WPA expire that the controversy arises. At this point, if the president is continuing the war and has not yet received explicit congressional permission to continue, he is using military force under the terms of neither the Constitution nor the WPA. He is thus acting with absolutely no authority -- either prior or current.

And Dr. Jackson, I must quibble with your statement as well. You said:

Since Congress recently passed Clinton's request for more funding (in fact, almost doubled his request), would that not constitute implicit permission to continue?

Yes, I suppose war funding would indeed constitute implicit permission. Alas, the Constitution requires a bit more than implicit permission via funding for an agency to carry through actions. To use an analogy, suppose Congress approved funds for the confiscation of all books and the prosecution of their owners. Would it then be ok for police to start raiding libraries?

Despite the implicit permission the funding suggests, the act of using the funds for said purpose would still be grossly unconstitutional. In short, the allocation of money does not equal constitutional permission!


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~ Complacency is far more dangerous than outrage ~

Yes, I suppose war funding would indeed constitute implicit permission. Alas, the Constitution requires a bit more than implicit permission via funding for an agency to carry through actions.

The War Powers Act says that the President must obtain the permission of Congress when his deployment of US forces will last for more than 60 days. Clinton asked Congress for money to continue the assault on Kosovo. At that point Congress could have said, by vote, "Nope, no money because we don't think this is right". They instead chose to further fund the assualt, thereby giving the President permission to continue. If you were saying Congress must specifically vote "Continue the bombing? Yea or Nay", then you are wrong.

To use an analogy, suppose Congress approved funds for the confiscation of all books and the prosecution of their owners. Would it then be ok for police to start raiding libraries?

Stark, please. You should have said "to use a really bad analogy...". There is no Book Powers Act which covers the situation you suggest, making this an apples/oranges comparison. But to answer your question, yes. If Congress passed and funded such legislation, police agencies would be legally bound to enforce it until someone challenged the legislation in a court of law. That's the way our system works.

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The overwhelming majority of people have more than the average (mean) number of legs. -- E. Grebenik

Dr. J, I don’t understand why you’re still arguing that money equals permission. It simply does not, and you yourself already set the matter to rest when you said:

The War Powers Act says that the President must obtain the permission of Congress when his deployment of US forces will last for more than 60 days. – Dr. Jackson

There you have it. In your own words: … the President must obtain the permission of Congress …. Without such congressional permission, the president may not legally continue a military campaign – regardless of how much money he may have to do so – without the express consent of a majority of Congress.

Also, you said

Stark, please. You should have said "to use a really bad analogy...". There is no Book Powers Act which covers the situation you suggest, making this an apples/oranges comparison. –Dr. J

Of course there is no such act, Dr. J, as suggested by the word suppose that preceded my analogy. Analogies are usually made up of hypothetical situations, and as such, the lack of the analogy’s existence in real life does not negate its validity. The point of my analogy was to show that funding – by itself and void of any directive to use the funding – does not equal explicit permission.

If you still feel this is an apples and oranges comparison, please explain why. Simply saying "because it doesn’t exist" isn’t enough.

And finally,

But to answer your question, yes. If Congress passed and funded such legislation, police agencies would be legally bound to enforce it until someone challenged the legislation in a court of law. That's the way our system works. – Dr. J

By adding more to it than was originally there, you apparently missed a nuance of my hypothetical analogy. You are correct that if anti-book legislation were passed and funded, then police departments would be required to enforce the law until it was challenged. But please carefully reread my post. Nowhere in it did I say the anti-book legislation was passed. I only said it was funded.

And therein lies the crux of this thread. Congress has indeed appropriated money to fund the Kosovo campaign. Congress did [i]not[i/], however, legitimize the campaign itself.

As I’ve said before, funding without legislation – or in this case funding without a declaration of war – does not equal legality.


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~ Complacency is far more dangerous than outrage ~

Stark - Let's see if I can explain this on a level you can understand. Say you went to youe Dad and asked "Can I have $10 to go to the movies?". Your Dad says "Here's 10 bucks, son!". Since he never specifically said "Yes, you may go to the movies", do you have to just hold that 10 spot until you hear those words? Clinton asked Congress for for 6 billion dollars to continue the NATO assault on Yugoslavia. Get it? He asked for money for a specific purpose. Congress said "Hey, take 13 billion to continue the assault!" That is permission. The WPA requires permission - not legislation, not a declaration, just permissson.

As for your analogy, you are correct. If you remove the passing of legislation and have Congress funding a non-existant program your analogy is no longer bad. It's moot.

Its really easy.

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The overwhelming majority of people have more than the average (mean) number of legs. -- E. Grebenik

I admit I used the term "implicit permission" in my original post, but in thinking more about this situation I came to the conclusion that the permission granted by Congressional funding was actually explicit. Hence the explanation in my post earlier today:

Clinton asked Congress for for 6 billion dollars to continue the NATO assault on Yugoslavia. Get it? He asked for money for a specific purpose. Congress said "Hey, take 13 billion to continue the assault!" That is permission. The WPA requires permission - not legislation, not a declaration, just permissson.

Clinton asked for funds for the expressed purpose of continuing the assault on Yugoslavia, Congress agreed. I think that is pretty explicit permission. Had Clinton asked for an $X billion increase for general military spending, and used those funds to further assault Yugoslavia, then Stark may have a point.

I still don't like Stark's analogy. In the currrent situation we have legislation (the War Powers Act) and precedent (Dessert Storm among others) to account for the funding request. Stark's analogy has Congess funding something that exists niether in theory nor in practice. I don't see how that illuminates his point.

Undead Dude - Most times when people refer to me as an it, "it" is preceded by "sh".

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The overwhelming majority of people have more than the average (mean) number of legs. -- E. Grebenik

I think by definition, for the permission to be explicit, they would need to actually state that they approved. Approval by action only is implicit.

I think that the it illustrates the point that if you do not require specific rules for procedure (such as in the case of implicit and explicit consent), you can set the precedent for misuse of laws. Perhaps a better example would be a case in which a person pays a fine for a crime without pleading guilty. This might be interpreted as an implicit admission, but it isn't treated as such legally. Also, if I pay a person for services that I don't belive I should need to pay for, I can still sue for that money. In this case, what could be interpreted as implicit consent again is not legally consent.

My take on this is that it may or may not be illegal, but it doesn't matter. Congress would never be crazy enough to prosecute the president for something that they gave clear implicit consent to. That would be a clear misuse of power.

Say you went to youe Dad and asked "Can I have $10 to go to the movies?". Your Dad says "Here's 10 bucks, son!". Since he never specifically said "Yes, you may go to the movies", do you have to just hold that 10 spot until you hear those words? -- Dr. J

Something tells me that there is a bit of a difference between the validity of implicit consent of a dad, and the implicit consent of Congress.

Are you deliberately ignoring the point that there is a substantial difference between implicit and explicit consent?

It seems to be arguing as if law can be based simply on intent. Well, generally that isn't the case. Intent is a very inexact thing, and law needs to be precise.

I thought Stark's analogy was a very natural and appropriate one. It uses an exaggerated senario to hit the point home, but it shows why the difference between implicit and explicit consent is important.

Man, my proofreading has been bad recently. Didn't mean to make you sound like an it, Dr. J

That should have either said
"It seems that you are arguing..."
or
"You seem to be arguing.."

UDD - I still maintain that approving funding for a specific purpose explicitly approves the purpose, but really that is beside the point. I agree completely with your last paragraph. Unfortunately, politics is more of an art than a science.

Stark - I owe you an apology, I should have presented my point without being so snippy. Guess I'll have to quit reading the BBQ Pit and Great Debates forums before GQ. Puts me in the wrong frame of mind.:0

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The overwhelming majority of people have more than the average (mean) number of legs. -- E. Grebenik

I don't know about impeachment, but just for the record here, today a federal judge dismissed a War Powers Act lawsuit filed by 26 members the House who wanted the bombing of Yugoslavia by U.S. forces to be declared illegal. The suit was based on a split 213-213 vote that failed to authorize U.S. participation in the NATO bombing. The judge cited inconsistencies in the Congress' record in four votes directly aaddressing the Kosovo issue, including the above mentioned funding authorization.

The judge said, "213 representatives who voted against authorizing the president's actions and against a declaration of war also voted in favor of supporting the troops and appropriating money to fund the conflict in Yugoslavia and against directing the president to remove the Armed Forces from their positions. ...absent a clear impasse between the executive and legislative branches, resort to the judicial branch is inappropriate.''

I agree with that earlier part about this thread belonging in the great discussions board, or whatever it is called.

There's a problem with the "if Congress approves money for a military action it is implicitly approving the use of force" line of thinking, and that is that if you get really technical about the Federal budgeting process, there are things called authorizations and things called appropriations.

The short version of the difference (because I can only explain the short version) is that authorizations allow the government to do something (within certain limitations, usually a cap on funds which can be spent); while appropriations actually provide the programs/operations with the money.

So, for example, if the Air Force wants to build another B-2 bomber, Congress must first pass an authorization bill giving the Department of Defense the ability to do so. Then an appropriation bill must be passed to move the money from the General Fund to the Buy Another B-2 account.

Thus, as I understand it, a simple appropriation cannot give -permission- for the government (or the president) to actually do anything, it just gives them the means.

Of course, things are a lot more complicated than this. For example, for many programs Congress simply doesn't do the yearly authorization bills. They just make things easier by authorizing programs in an appropriations bill, which, as I understand, it technically against the rules, too.

Enough blabber about this one small point.

and slid through it.

For the immediate present...

I think you all are missing the political angle of this question.

I don't agree with Judge Friedman's ruling, BTW. Funding doesn't equal authorization.

What funding does equal is Congress' unwillingness to challenge the President over Kosovo. The situation there, even now with peace plans being discussed, is murky. It's not like Kuwait or Pearl Harbor, where the course was obvious.

The Republicans in particular don't want to stick their necks out and oppose what might become a great triumph for the President. They'd look stupid. So they waffle, approve funding to 'support the troops', but remain divided on actually supporting the war offically. This keeps their options open.

Political reality makes the WPA a toothless law. If in '73 they had managed to make it a Constitutional Amendment and not just a joint resolution, it might not be so. I applaud the efforts of Campbell and the other lawmakers - I believe the Prez has walked into a situation the WPA was designed to prevent.

Dr. J: apology accepted. I’ve been away for a few days, and just got back. I have to admit that upon reading your post that started, "let’s see if I can explain this on a level you can understand …" I was ready to give up on any chance of intelligent discussion with you. So your realization of your snippiness is appreciated.

And at the risk of sounding as if I’m lording your apology over you, Dr. J, please be more careful with your posts. Words are all we have here – no gestures, no body language, no facial expressions. It’s just words, so please be careful with them.

Your father-son analogy is correct for most situations – but Congress is not one of them. Erik Raven is correct about authorizations vs. appropriations; in "real-life," they often equal the same thing. Not so in Washington, though.

Congress is indeed sending mixed messages when they vote on four Kosovo-related bills in one day and come up with what seems to be a different outcome for each. But a mixed message does not authorization make.

At this point, I figure we’ll just have to accept the fact that, absent a higher authority to definitively settle this, we’re not going to see eye-to-eye.


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~ Complacency is far more dangerous than outrage ~