The Constitution & War: Congress Declares & President Wages

Only Congress has the power to declare war according to Article 1, Section 8 of  the Constitution. In our more than 230 years there has been only five declared wars and each we decisively won — the War of 1812, the Mexican-American War¹, the Spanish-American War, World War I, and World War II.

Other military engagements have been authorized by Congress but not through a formal declaration of war. With the exception of both Barbary Wars in the early 1800s, most Congressionally-authorized but non-declared wars (or “conflicts”) took place after the 1950s — the Vietnam Conflict, the Gulf War, Operation Enduring Freedom in Afghanistan, and the Iraq War being prime examples. Additionally, several notable military engagements were never authorized by Congress but were initiated instead by presidential action following United Nations (UN) Security Council Resolutions — the Korean War, the Bosnian War, and peacekeeping operations in Haiti and Liberia. Again, for the record, please note that these UN military actions were never expressly authorized by Congress.

According to a September 25, 2001 Memorandum Opinion for the Deputy Counsel to the President and entitled “The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them,” there have been at least 125 occasions where the President has initiated military intervention “without prior express authorization from Congress” (and that total only counts those occurring before 2001). According to this document, the largest action was the Korean War:

Perhaps the most significant deployment without specific statutory authorization took place at the time of the Korean War, when President Truman, without prior authorization from Congress, deployed United States troops in a war that lasted for over three years and caused over 142,000 American casualties.

Similarly, the Bosnian War did not receive explicit congressional authorization. It was, as the Memorandum Opinion explains, a “unilateral deployment . . . [that] constituted full-scale war. On March 24, 1999, without any prior statutory authorization and in the absence of an attack on the United States, President Clinton ordered hostilities to be initiated against the Republic of Yugoslavia.” Like the Korean War, that military campaign was substantial as is noted within the Memorandum Opinion (which uses the word war):

Bombing attacks against targets in both Kosovo and Serbia ended on June 10, 1999, seventy-nine days after the war began. More than 30,000 United States military personnel participated in the operations; some 800 U.S. aircraft flew more than 20,000 sorties; more than 23,000 bombs and missiles were used.

While several wars received some form of congressional approval, the Korean and Bosnian Wars never received any express congressional authorization. In light of these and similar military interventions, does it really matter whether Congress, the President, or even the UN formally commits our troops and resources to war? Is there a difference between authorizing and declaring war?

To answer this question we must look to the Constitution which states how our nation can be committed to war. Jacob G. Hornberger, founder of The Future of Freedom Foundation, addresses this question in his 2002 article entitled “Declaring and Waging War: The U.S. Constitution.” He writes:

What does our Constitution say about war? Our Founders divided war into two separate powers: Congress was given the power to declare war and the president was given the power to wage war. What that means is that under our system of government, the president cannot legally wage war against another nation in the absence of a declaration of war against that nation from Congress.

A literal reading of the Constitution makes it clear that the Korean and Bosnian Wars amounted to bold, unconstitutional power-grabs by Presidents Truman and Clinton. But what about other wars like the Gulf War and the Iraq War? Didn’t both Presidents Bush received Congressional authorization to wage those wars? Wasn’t gaining that approval far better than the unauthorized actions of Presidents Truman and Clinton? Again, Hornberger offers a constitutional answer. He points out that “the fact that later presidents have violated the declaration-of-war requirement does not operate as a grant of power for other presidents to do the same.”

Specifically addressing the authorization for Operation Enduring Freedom in Afghanistan, Hornberger writes:

What about the congressional resolution that granted President Bush the power to wage war against unnamed nations and organizations that the president determines were linked to the September 11 attacks? Doesn’t that constitute a congressional declaration of war? No, it is instead a congressional grant to the president of Caesar-like powers to wage war, a grant that the Constitution does not authorize Congress to make.

Simply put, there was no declaration of war and so military actions taken by the President were unconstitutional. Hornberger concludes that the consequences of supporting such unconstitutional military campaigns are extremely dangerous for our liberty:

Therefore, when a U.S. president wages what might otherwise be considered a just war, if he has failed to secure a congressional declaration of war, he is waging an illegal war — illegal from the standpoint of our own legal and governmental system. And when the American people support any such war, no matter how just and right they believe it is, they are standing not only against their own principles and heritage, not only against their own system of government and laws, but also against the only barrier standing between them and the tyranny of their own government — the Constitution.

Nine years after Congress gave President George W. Bush an almost blank check to use force against terrorists we are still waging war in Afghanistan. Instead of wrapping things up, it seems that the Bush and now Obama administrations actively expanded the scope of this war into other territories. Now hardly a day passes that we don’t learn of new military actions taking place within Pakistan and other sovereign nations. Why is this war dragging on and expanding?

Could it be that our Founders intended for war to be infrequent because declarations of war are difficult to pass? Could it be they knew that it was foolish to give any President an open-ended “authorization” to simply wage war? Could it be they knew that a formally declared war, as opposed to a vague authorization to use force, would be carefully debated, clearly defined, and then quickly and decisively won?

Contrast our five declared wars with the at least 125 military campaigns initiated by Presidents without prior Congressional authorization. While all five declared wars ended decisively and in most cases quickly, a high percentage of all others have ended poorly at best — with some slogging on to this day. Put another way, most military actions merely authorized by Congress (but not constituting a constitutional declaration of war) have had a dubious outcome.

After 60 years of waging ambiguous and undeclared wars on multiple fronts, Congress is long overdue in reclaiming their rightful authority under the Constitution. Regarding our current war and multiple military incursions, it is time for Congress to revoke all unconstitutional authorizations of force, thoroughly debate each situation, and take a simple up or down vote to declare war. If military action is warranted then Congress should own up to the need and declare war (and the President should then quickly win it). If no declaration of war is merited then our government should cease all military actions within that sovereign nation and bring our troops home. We cannot allow the Constitution to be violated any longer. If we fail to act now and end this unconstitutional abuse then our personal liberty may be the next victim under a President wielding Caesar-like powers.

¹While not officially declaring war, Congress formally recognized that a state of war existed. However, in 1848 the House of Representatives censured President Polk for “unnecessarily and unconstitutionally” provoking this war with Mexico.

Image credit: jscreationzs

1 thought on “The Constitution & War: Congress Declares & President Wages”

  1. It seems the UK has to pay out millions in compensation to former Guantanamo Bay detainees who accuse them of being somehow involved with their imprisonment. This cop-out wouldn’t have been necessary if Great Britain had appropriately stood back from the illegal happenings there from the word go as it ought to have done.

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