The Power to Declare War Does Not Rest with the President

I believe that we should greatly curtail the president’s authority to deliver the US into conflict. The constitution puts the power to declare war into the hands of congress, not the president. It has become convenient to wage wars under other names, and avoid all the unpleasantness that comes from actually declaring war.

I recognize that there are military “situations” that can and will arise which warrant swift action at a level below actual declaration of war. Reasonable people could differ on where that line is (using military hardware to extract US citizens from a deteriorating situation? A few air strikes to help some minorities on the side of a mountain avoid genocide?) BUT, it can not reasonably be argued (IMO) that Vietnam, Gulf I, Iraq, Afghanistan, et al. were less than war. As such, they should not have been conducted as they were without a declaration of war.

This has been something that has bothered me for a number of years. Before Iraq 2003, actually. I believe that war is a serious endeavor, not to be entered lightly, and not to be undertaken without the full backing and joint sacrifice of the nation. So no invasions combined with tax cuts. I think the current ease with which war can be first waged, and then disavowed is a moral disgrace.

This approach would also eliminate the current disgrace that has Senator McCain demanding that Obama involve himself in every GD conflict in the world. I wish someone would remind Senator McCain that he could in fact lead his colleagues in a declaration of war against ISIS, Syria, or any other group he’d like us to kill over. Wouldn’t you like to see how that went over in the senate?

Agree? Disagree?

I have never much understood the rationale of issuing a declaration of war. If I were a warmongering leader, the last thing I’m going to do is give my foes any advanced warning of what’s coming.

Sneak attacks are more effective tactically, I should think. Then again, the bulk of my military strategy came from playing Sid Meier’s Civilization. :smiley:

Until everyone else gangs up on you and destroys you because you have a tendency to attack without warning.

The War Powers Act is already the best possible compromise here.

It allows the President to act, in a fast-moving international situation, as the Commander in Chief. And, while this might end up getting us involved in a war, it can also prevent incidents such a Benghazi. The last thing we can afford is to have the President so tied and helpless that he can’t “Send in the Marines” when some foreign power commits a violent act against us.

Meanwhile, the WPA puts demands and responsibilities upon the President. He can’t invade Iraq, for instance, all on his own.

Finally, Congress has immense Article I powers over the operation of the military. If they really get ticked at what the President does, they could disband the Marines…or simply refuse to pay for a current operation.

We don’t need any further sweeping reforms. We’ve already seen to that, and have a really sensible balance, already enacted into Federal Law.

I don’t see any significant difference between a declaration of war and an AUMF, like the ones Bush got in 2001 for Afghanistan and 2002 for Iraq. Everyone knows we went to war in those cases, and they are always referred to as wars.

I’m not a huge fan of the War Powers Act, but it should be noted that the constitution says only Congress can declare war, but iit also says the president is the CiC of the military. And it doesn’t define what “war” is.

Considering some folks still get their dander up about Pearl Harbour, sneak attacks don’t sound like a good long term strategy. Of course, if you’re planning on getting hanged by the time the war’s over, that’s not too much of a concern.

Well yeah, but then he and his fellow travellers couldn’t turn around to blast Obama over his foolhardy military adventurism, so what’s the point ? :wink:

What’s the magic in the phrase “declaration of war”? In each of those cases, the President asked Congress for authority to use force, and in each case, Congress did so:

Vietnam: Gulf of Tonkin Resolution.

Gulf War I: Authorisation for Use of Military Force

Gulf War II: Authorisation for Use of Military Force

Afghanistan: Authorisation for Use of Military Force against 9/11 Terrorists

Seems to me that certain laws pertain when the United States is “in a state of war”. Granted, some prosecutors/defenders might argue that, even absent a congressional declaration of war, the US could be in such a state. With said declaration, there’s no ambiguity.

Congress declares war every time that they authorize spending for a war. There is nothing magical or necessary about using a particular phrase.

The legal authority to declare war rests with Congress. As a practical matter, the war powers act has been used to circumvent that for uses of force that constitute acts of war. When Congress authorizes force, I suppose that is a de facto equivalent of declaring war, but I’m not sure what constitutional law and international law say on the subject.

Here are the legal issues:

  1. The Constitution gives Congress war making power, but it gives the President Commander-in-Chief power. This has created a murky area between what exactly constitutes war making power vs. commander-in-chief power.

  2. When the President does something and Congress doesn’t do anything about it (either by ratifying the action or objecting to it), this creates what is known as “Presidential gloss.” In layman’s terms, gloss is stuff that the President has power to do because Congress didn’t do anything about it.

  3. Since the inception of this country, Presidents have been deploying force overseas without Congressional action. Sometimes Congress has ratified after the fact, and sometimes they haven’t done anything about it. Where Congress hasn’t done anything about it, Presidents have claimed that this constitutes “gloss.”

  4. I am of the opinion that even after gloss has been established, Congress is free to revoke it. So, I am of the opinion that the War Powers Resolution revoked any prior presidential gloss. Most people (or at least the people who matter) don’t agree.

  5. However, even after the War Powers resolution, the President has on occasion deployed without any sort of Congressional action, which means that even under my view, new Presidential gloss has been established that allows the President to deploy in a lot of different circumstances. And I don’t think it’s a huge legal argument to go from the current interpretation of gloss to an interpretation which basically lets the President deploy whenever he wants to.

  6. Given all that, if Congress refuses to act, there is essentially little to no restriction on the President’s ability to deploy, except for public pressure.

I personally think the President’s war making powers should be severely curtailed. But Congress is the one who has to do it. Either that, or public pressure has to be organized each time a potential deployment comes up.

Doesn’t the War Powers Act specifically give the President the ability to deploy troops on his own, at need, with only the requirement that he notify Congress and give a reason for it, and only for a limited period of time? It isn’t a gloss; it’s specified in the law.

Is there a discussion somewhere on this “Presidential gloss”? I’ve never heard of it before. It sounds like a euphemism for not a lawful action, but who is going to stop the President.

Yes, it does, but we had a thread on this subject during the Libyan intervention, and if IIRC, posters were able to find instances of deployment that did not conform to the WPR and which were either not acted on by Congress or were acted on retroactively (and the WPR doesn’t technically allow for retroactive authorization).

My view was that the Libyan intervention was unconstitutional, but I had a lot of trouble justifying that view. I still hold that view, but it’s just not the way things work in our system nowadays.

Here’s the thread where we had a big discussion about it. It’s cumbersome to research each and every deployment by the US (we deploy a lot) and how Congress dealt with them. I had to deal with work, so the thread kind of died, but the arguments are covered there:

That’s your opinion, and judging by the history of congress, it’s a mistaken opinion.

The key part of declaration of war is “declaration.” It’s the ability to formally tell your enemy you are in war with them. It is a magical phrase. You can declare war and be in a state of war with another country without a shot ever being fired. It’s a state of mind. The Geneva Conventions are triggered when a war is “declared” (also when there is a de facto war but war is not declared).

Internationally, After WWII this formality was effectively done away with. Why? The UN now governed war. War is illegal unless authorized by the UN or you’re acting in self-defense. That’s it. Any “threat to the peace, breach of the peace, or act of aggression” is illegal. Assuming the UN does not authorize, a country puts themselves at great risk as being seen as the aggressor if they are the first to declare war. The other would not declare war and then claim self-defense. Why risk it when it’s not necessary. The UN then can only look to the actual facts to determine who is the actual aggressor (who shot first, who provoked who, ect).

Domestically, The US authorizes war (and always has, even when they declared it). An authorization does not trigger a formal state of war. It just allows the President to engage another country (terrorist group) in war when, and if, he chooses. We quit declaring war after WWII in line with not wanting to set a prima facie case as being seen as a UN aggressor.

I don’t think the idea that we stopped declaring war has very much to do with WWII, the UN or the Geneva Conventions. The US used authorizations of military force on several occasions before any of those things - going back to 1807 if my memory serves.

Under US law, a declaration of war triggers expansive Presidential powers. For the limited wars that the US has fought since WWII, those powers would simply be unnecessary.

Besides which, a country can easily be determined to be an aggressor by the UN in the absence of a declaration of war. There simply isn’t a connection between the two.

Yeah, it’s the UNSC that deals with issues of war, and since the US has veto power, we don’t have anything to worry about wrt the UN.

I do think the “new” UN paradigm is one reason. Maybe the final nail in the coffin is more appropriate. I think there are others, though, specifically what you mention. The point of my post was to show what a declaration of was is, and that it is a formal declaration separate and apart from an authorization and/or going to war.

The ICC (a court) prosecutes a Crime of Aggression. The UNSC can refer them a case, but that’s not the only way they get jurisdiction.