The US Congress has not formely issued a Declaration of War since 1941. All the wars we’ve fought since then were undeclared. Now formal declrations of war aren’t necessary for the US to fight a war; but would a formal declarion of war by Congress make any difference? Does declaring war give the federal gov’t powers they don’t have now? If so what are they? Could Congress increase the federal governments authority by declaring was against Osama bin Laden & Al Quada?
The Constitution only says Congress must declare war. It does not say anything about additional powers once war is declared.
I believe the President’s actions are limited by the War Powers Act unless Congress give’s it’s approval. Whether that is a formal declaration of war or some other form of approval is not clear to me.
Yes. There is a laundry list of powers that come into effect if Congress passes a declaration of war. These powers are contingent upon a declaration of war; a resolution authorizing the use of military force is not sufficient.
For example, the Trading with the Enemy Act allows the President to exercise great control over financial transactions and trade, including seizing property associated with foreign powers. The Alien Enemy Act, which dates back to the 18th Century, also gives the President broad authority to detain or expel certain immigrants.
Other examples of increased powers include the power of the President to call up the National Guard and Reserves for unlimited periods of time (currently, reservists are limited to 24 months duty during a time of “national emergency,” such as is now the case with Iraq.)
I’m not aware of any comprehensive listing of all the legal consequences of a declaration of war, but there are a substantial number other than those listed here.
As Ravenman explains, several federal statutes use a declaration of war as the trigger for various conditions coming into effect. But declaring war doesn’t exactly “give the federal gov’t powers they don’t have now” – the statutes invoke powers that the federal government generally has anyway, and simply does not exercise (or exercises through different officers or in different ways) in peacetime. As RealityChuck points out, a declaration of war does not increase the federal government’s available constitutional authority – any power whose exercise is inherently unconstitutional in peacetime does not become constitutional by virtue of war having been declared.
The original significance of a declaration of war was not in domestic law but in international law. A declaration was the means by which a civilized nation notified its enemy and other nations that it was entering into a state of war, which entailed consequences for the enemy’s nationals and for neutral nationals who were present in or trading with the nation declaring war.