Congressional Power to Declare War

 

 

Here is a link to a report by the Congressional Research service which lists hundreds of uses of U.S. armed forced abroad from 1798 to 2004 (note: this can take up to 20 seconds to load):

http://www.au.af.mil/au/awc/awcgate/crs/rl30172.htm

 

 

With wars continuing in Iraq and Afghanistan, let’s step back and take a brief look at the power to fight wars and engage in military action exercised by Congress and U.S. Presidents.

While the U.S. Congress has issued Declarations of War in five wars over the past couple of hundred years, U.S. Presidents and the U.S Congress have authorized numerous military operations and even “wars” without such Declarations of War by the U.S. Congress. What does the Constitution actually say about this?

Article I, Section 8 of the United States Constitution says “The Congress shall have the power … To declare war…”

Article II, Section 2 says “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…”

Congress declared war:

  1. In 1812 against Great Britain (War of 1812)
  2. In 1846 against Mexico (Mexican-American War)
  3. In 1898 against Spain (Spanish-American War)
  4. In 1917 against Germany and Austria-Hungary (World War I)
  5. In 1941 against Japan, Germany, Italy; in 1942 against Bulgaria, Hungary and Rumania (World War II)

Undeclared Wars:

There have been numerous undeclared wars in which the United States was engaged in military operations, but here are a few examples:

President John Adams asked Congress for legislation to protect American shipping, as American relations with France had deteriorated in 1798 to the point where the French navy had seized more than 300 American commercial ships. This was after the start of the French Revolution and was during a time of war between England and France.

President Thomas Jefferson asked Congress to pass legislation to protect American commercial ships against pirates from Tripoli in 1802; President James Madison did the same in 1815 against pirates from Algeria; the U.S. Congress authorized President James Monroe to use armed vessels to protect American shipping from pirates in the Caribbean and Latin American waters and he issued the Monroe Doctrine in 1823.

There were numerous wars fought against Native Americans.

U.S. military forces were used numerous times such as Commodore Perry carrying a letter from U.S. President Millard Fillmore to the Emperor of Japan and the opening of Japan to U.S. trade in 1853-1854; in the Boxer Rebellion in China 1900-1901; wars in Central America, etc.

Of course, the above list by the Congressional Research service would not include covert operations by the CIA and other intelligence agencies.

After World War II there was a major shift with U.S. Presidents engaging in major “wars” without Congressional Declarations of War: President Harry Truman’s Korean War starting in 1950; and President Lyndon B. Johnson’s and President Nixon’s Vietnam War 1965-1975.

A Congressional Research Service report from 2007 states:

But a declaration of war automatically brings into effect a number of statutes that confer special powers on the President and the Executive Branch, especially concerning measures that have domestic effect. A declaration, for instance, activates statutes that empower the President to interdict all trade with the enemy, order manufacturing plants to produce armaments and seize them if they refuse, control transportation systems in order to give the military priority use, and command communications systems to give priority to the military. A declaration triggers the Alien Enemy Act, which gives the President substantial discretionary authority over nationals of an enemy state who are in the United States. It activates special authorities to use electronic surveillance for purposes of gathering foreign intelligence information without a court order under the Foreign Intelligence Surveillance Act. It automatically extends enlistments in the armed forces until the end of the war, can make the Coast Guard part of the Navy, gives the President substantial discretion over the appointment and reappointment of commanders, and allows the military priority use of the natural resources on the public lands and the continental shelf.http://www.fredsakademiet.dk/tid/1800/1812/us_decleration_of_wars.pdf

U.S. Congress made an attempt to regain its power “to declare” war with the War Powers Resolution Act of 1973. This bill allows the president to use military force for up to sixty days, with an additional thirty days to permit disengagement.

During the 1980s, members of Congress filed court cases charging that President Reagan violated the War Powers Act by sending military advisers to El Salvador; the invasion of Grenada, military actions in Nicaragua and the Person Gulf. The courts basically said if Congress doesn’t defend its right to declare war, the courts can’t step in to protect that right.

Similarly, members of Congress brought a lawsuit against President George H. W. Bush in 1990 for sending troops to the Persian Gulf. Another suit was brought by twenty-five members of the House of Representatives against President Bill Clinton for military action in Yugoslavia without congressional authorization. The courts gave similar rulings to the 1980s cases.

What has occurred is that basically presidents now have the power to start and conduct wars as they please.

How to you feel about Congress giving up its power to declare war and authorize military action?