To the best of my knowledge, the United States of America have not declared war on any state since Korea (with the possible exception of Grenada and Nicaragua).
Will we ever see a real, honest-to-god WAR, with a declaration to Congress and a cheesy rendition of “…a day that will live in infamy…” and all that?
Personally, I consider an attack on the armed forces of another state without a declaration of war to be an abuse of the power of the Executive, and the impeachment of any Commander in Chief so doing to be entirely justified, but that’s just me.
I don’t think war was declared on Korea either. I’m pretty sure the United States has not been technically at war since Japan surrendered in August of 1945. Since it’s apparently even riskier politically to declare a war than it is to fight one - people hate being at war, so the solution seems to be “just don’t acknowledge it when you are” - I’m not sure we’ll ever see it happen again.
The War Powers Act gives the Chief Executive the necessary flexibility to respond to immediate, short-term threats in the world, without having to get bogged down in Congress. I think it’s a necessity that that decisive authority has to rest in a single person, and the President, whoever s/he may be, is the appropriate officer to wield that authority.
In the instance of longer conflicts that amount to something less than a full-scale war, my opinion is that a Congressional resolution suffices. (If it doesn’t, then should we impeach Congress too?)
However, I agree that all-out war against the government of another country - invasion, occupation, removal of the head of state - rises to the level that really should be accompanied by a declaration of war. I can see how a declaration of war was less than appropriate for every other post-WWII US military action. But not this one.
Having been to law school, and having studied this issue, I can say with confidence that—I’m still not sure how we go to war without going to war.
One of the problems with the highest levels of constitutional law is that it rarely (if ever) gets tested in court. Which is good if you think about it. The judiciary stepping in to moderate disputes between the legislative and executive branches must be done with great circumspection and with due deference to SoP issues. In other words, getting involved could itself be the wrong thing to do no matter the final judicial decision or the rectitude of it.
It’s often noted, correctly, that the power to go to war rests with Congress. But, it’s often forgotten that this power balances against the almost absolute power of the CiC to defend the US and command the military. If Congress chooses to permit the CiC to go to ‘war’ with an authorization of use of force resolution, who is going to challenge it? Not Congress, the party of interest.
As I understand it, a declaration of war has no validity in international law. Aggressive action by one state on another is illegal, so it would be a breach of international law to do so. Which is of course different from self-defence. The recent idea of pre-emptive action is therefore on pretty shaky legal ground (call it “groundbreaking” if you must).
However, will the USA ever be engaged in an armed conflict again? Yes, probably more or less permanently, as it is in the nature of empires to be forever at war on the periphery of their zone of influence.
Besides, it would be a shame to have all that lovely shiny expensive new kit and not to use it…
I agree with everything that you said, except this statement cries out for clarification.
As made in earlier posts, the point is well taken that Congress is extremely loath to insist on its constitutional power to declare war, what with the War Powers Resolution allowing the President to do virtually anything he wants, so long as it does not last more than 60 or 90 days.
But still, the point must be made that there are important limits to the power of the Commander in Chief, whether or not he is held to them.
From 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. "
The idea that a President can waltz in and take over or bomb the hell out of a county – whether it be Grenada, Panama, Kosovo, or anywhere else – and Congress barely lifts a finger in dissent, makes a mockery of the separation of powers in this area.
And as war as declaring war vs. authorizing the use of force, I don’t think it makes one whit of difference other than how the terms are perceived by the international community.
Depending on the constitutionality of the WPA (I think it isn’t, but nobody really knows), the POTUS can “waltz in and bomb (anybody)” really, at least for a period of months. But, remember, the Congress can zero fund the effort, start impeachment proceedings, dozens of investigations, club the rogue POTUS in the media, and generally do everything except directly stop his (or her) actions at that moment.
But, I agree, eventually Congress could put a stop to any US military involvement. Eventually.
Federalist papers only take you so far. I’d look at Article III of the US Constitution and balance it against the Article I powers before I start digging into legislative history.
We won’t declare war (in the old fashioned way) unless there is a direct atack by another country on the US, like the Japanese attack on Pearl Harbor. You may not like the currect war in Iraq, but to say that the president did not have authority from Congress to initiate it is simply wrong.
Look, this is only a constitutional problem if congress asserts that it is a constitutional problem. But they won’t do that, don’t forget that both the house and senate passed resolutions authorizing the president to use the military however he saw fit. If you want to argue that congress should have passed a declaration of war rather than a resolution authorizing military force, that’s fine, except congress doesn’t agree with you. Only congress can defend their power to declare war against usurpation by the executive, if they refuse to do so then your recourse is to vote other people into congress.
And anyway, a declaration of war doesn’t make the subsequent violence any more or less moral or legal. If the violence and military force is in itself immoral, declaring war doesn’t magically make it moral. And a declaration of war is a matter between states, the internal affairs of the declaring country are beside the point. If the president unconstitutionally declares war and starts bombing another country, the war exists despite the fact that the president has no authority to declare war.
In other words, war is when two armies fight each other, not when someone signs a piece of paper.
this brings a question to my mind…can the president use nuclear force without any prior authorization? Does the sole power to start that kind of bombing rely only on him??
First, the War Powers Act grants NOTHING to the President. It is an attempt to RESTRICT presidential activity, not extend it.
Second, it is legal to make a formal declaration of war under international law. Otherwise, it would not be legal for a country to enter a formal state of war in defense of itself.
In reverse order to your points, I think the Constitution clearly lays out a process by which Congress is supposed to make the decision for or against war, not the President. (Excepting the common-sense case of defensive action against a sneak attack, which we can all concede is necessary and proper.) The Federalist buttreses that reading, in my estimatation.
Perhaps you can go into some depth how “The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States” somehow proves to be “almost absolute power” over the military, as compared to Congress having the powers
"To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress"?
On the second point, agreed, Congress could stop funding for a particular war, supposing the 2/3 of the Legislative Branch was opposed to it.
On the first, Congress can certainly do all of that. But in such a case, the Legislative Branch is essentially on the defensive, straining to find ways to reclaim the power over whether our country should be in a war – a power that is very clearly and very deliberately NOT given to the Chief Executive. I think that’s an encrochment on the balance of powers, and a mistake besides.
I will concede that one’s view on the WPR depends on where one sits. One with a bias toward the Commander in Chief certainly can say that the WPR restricts him; one with a bias toward Congress can certainly say that the President is given a free hand to undertake just about anything he wants - from an embassy rescue operation to an invasion - for a period of 90 days, so long as he writes a couple letters to Congress.
But as one who thinks that the war powers of Congress should be zealously guarded, I think that the WPR is a bit of a non sequitir. I my mind, the true measure whether a military operation should be authorized by Congress has nothing to do with how long that operation lasts. The most important factor, in my view, is the size of the commitment and the circumstances surrounding it.
I have no problem with allowing the President to undertake rescue missions or truly defensive operations without asking Congress for permission. But I think Congress ought to weigh in before a President can launch operations like those in Grenada, Lebanon, Panama, Kosovo, and Haiti.