So is this war and if so who declared it?

My understanding is that only congress can declare war. Several “wars” fought in the last half decade have gotten around this with the claim that we were merely aiding a ally and not a principle combatant (Vietnam, Korea, Gulf I) This time though the US seems to be the only aggressor (If we stopped pursuing the war would anyone else attack?)

By my reading of the US Constitution, and all of the analysis I can find, a state of war does not currently exist between the US and Iraq. A state of war cannot exist unless Congress passes a declaration of war. The armed forces lead by the commander in chief cannot commit troops to the invasion of a foreign power without a declaration of war.

So, is my research accurate?

If so then is the executive branch proceeding without authorization?

Could SCOTUS stand up one day and say to the Executive, “Stop That!” and make them get a declaration?

There’s a lawsuit going on today over this very issue. The case got tossed out last week or so, but is now up for appeal. Sorry, can’t find the story just now, but it should show up on AP or Google News later today.

I’d be very curious just how many analyses you found and read.

The Executive Branch appears to be proceeding under the assumption that Congress’ S.J. Res. 23 provides sufficient authorization.

In what way, specifically, is it deficient?

  • Rick

Well- nobody seems to bother with an actual “Declaration of War” any more.

The Prez can commit troops for a certain limited time without a “declaration”.

However, since Congress issued a “Declaration of War against Terrorism” (whatever that means), this could be an extension of it.

I suggest that everyone here read our glorious Moderators warning, he is taking this seriously. Maybe this is better suited for GD?

My understanding was there was a certain number of troops that could be deployed without approval, and over that number needed congressional approval.

Here’s the story: Appeals Court Weighs Bush’s War Powers

Well if this one doesn’t have a factual answer then we’re in big trouble. :dubious:

I am serious about wanting a factual answer to this question. According to the constitution can the Executive Branch invade a soveriegn power without a formal declaration of war from the legislative branch?

Not sure of the exact number. Most of them I found in a Google search read like an excerpt from a high school civics book. I had trouble finding anything that was any more relevant so I decided to come to the board to see if anyone esle had the answer.

Thanks that’s what I was looking for.

Degrance:

Have you read the Joint Resolution to authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States? It is S.J. Res. 23, or Public Law 107-40.

The main complaint against this resolution appears to be the claim that Congress cannot pass its responsibility to the President in such a contingent fashion. Congress must explicitly declare war, say the proponents of this view, and may not pass a resolution giving the President the power to decide who to attack.

The problem with that clain is that it is without explicit Constitutional basis. The Constitution does give Congress the exclusive province to declare war; it does not say that Congress cannot declare war by way of Presidential action.

Also noteworthy is the fact that since World War II, the last time Congress formally declared war, the U.S. has used military force in over one hundred incidents without a congressional declaration. Korea, Vietnam, the Dominican Republic, Haiti, Lebanon, Bosnia, Nicaragua and the 1990 Gulf conflict all come to mind.

I would be glad to address this issue in more detail if I had a sense of what you’ve read so far, and in what way you feel the extant Congressional authorization is insufficient.

  • Rick

Define “factual”. Certainly the Courts have weighed in with what they call “opinions”, and these “opinions” have “dissenting opinions”. If it is postulated that any “opinion” by SCOTUS makes it a “fact”, then, yes, we could have a “factual answer”. Otherwise, all we are going to have is more & more authoritive “opinions”.

As I pointed out, (and Bricker said much better than I did)- there is a “Joint Resolution”, which is tantamount to a “Declaration of War”- but against “terrorism”. And, as has been said- even without Congressional Approval, the Prez can commit certain forces for a limited amount of time.

The thing is, the arguement is about semantics. What is a “war”? What is a “declaration of War”? What is an “invasion”? But semantics aside- the basic answer: is “no, not without some sort of Congressional approval”- which Congress beleives (and so far the Courts agree) it has given. We do not have to send a Herald with an Illuminated scroll over to Saddam with a “Declaration”. Nor does the “right to a free Press” only apply to a newspaper printed on an actual 16th century printing “press”. Even a strict reading of the Constitution says that only Congress can “declare” war- but nothing about “engage in or make” war. (And that gap is why Congress has written several laws which attempt to clarify this).

So all the midddle paragraph of your OP is “opinion”, based upon some strained meanings of certain phrases & words. “Realpolitik” doesn’t work like that.

My guess is, that the USA will not issue a “formal declaration of War”, even if we do invade, and that the Courts will uphold it.

Whoa. All these arguements are making my head spin.

Here’s the deal.

on October 11, 2002, the House and the Senate passed HJ Res 114, which authorized the President to use military force against Iraq, “as he deems necessary and appropriate,” to defend the US against the “continuing threat” posed by Iraq and to enforce all relevent UNSC resolutions.

A use of force authorization is generally considered an acceptable way for Congress to allow the Executive to prosecute a war. A declaration of war may be undesirable in some circumstances because it would activate other laws that give the President a whole lot of power… which is fine if we are engaged in a total war, but probably not now.

More or less like Bricker states, some opponents of war believe that this authorization delegates the final decision on war or peace to the president. It is a long-standing and unquestioned Constitutional principle that Congress cannot give its enumerated powers (ie, those explicitly laid out, like declaring war, raising taxes, coining money, etc) to the Executive Branch, even if it votes to do so. (The main reason is that such action destroys the checks and balances of the Constitution.) This non-delegation of powers is the reason why the Supreme Court struck down the line item veto… but that’s another story.

So does this mean that HJ Res 114 will be ruled unconstitutional? Hardly likely. Courts generally view this power struggle between Congress and the President as a political question, and so they won’t rule on it. In a practical sense, the Congress gave the President all the authority he needs to go to war, even though there may be some good arguements that may be made to the contrary.

As far as SJ Res 23 goes, that resolution, passed on 9-14-01, does not “declare war on terrorism.” It authorizes the use of force “against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

Any connection between al Qaeda and Iraq would not, on its face, be sufficient under SJ Res 23 to authorize the US to use force against Saddam. It would have to be determined that Iraq “planned, authorized, committed, aided,” or harbored those terrorists that carried out 9-11.

Oh yeah, the War Powers Act. In 1974, Congress passed, over Nixon’s veto, an act that is supposed to be a guideline of how war powers are split between Congress and the president.

In practice, the president can use troops for 60 days for basically any purpose, but he must made a good-faith effort to inform Congress prior to deploying forces into hostilities, and then those troops may only be kept there for 60 to 90 days without explicit congressional authorization. It also has some reporting requirements so that Congress can be “informed” about what’s going on, but those reports are basically a joke in that they don’t contain much useful information.

http://www.whitehouse.gov/news/releases/2002/09/20020927.html

There’s a sample.

The War Powers Act is viewed by all presidents as a shackle on the commander in chief, and by those concerned with Congressional prerogatives as an inadequate measure of how our country may be sent to war… as long as that war doesn’t last too long. The answer is probably somewhere inbetween – presidents are too power hungry and Congress is too often a micromanager. But as Hamilton said in Federalist 69:

"The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature. "