I have been labouring on this for some time now but matters of late have forced me to put it to pen.
There seems to be a great deal of confusion – much of it deliberately so – regarding Presidential and Congressional war powers and more importantly, what constitutes a “declaration of war.”
First things first, let’s turn to the specific language of the U.S. Constitution on these matters:
Article I, Section 8 – The Congress has the sole power “to declare war.”
Article II, Section 2 – “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;”
Turning to the matter of Congressional powers, the Constitution grants Congress sole power to declare war. This is the only reference to a declaration of war in the document. There is no formal template or language that must be used in the process. A declaration of war is merely Congressional authorization or mandate to the commander in chief that war be made against a known entity. The logic of placing such power within the hands of the legislature is that the legislature is directly accountable to the people in their districts or States and therefore represents “the people” in a more direct sense than does the executive. Additionally, we have to be mindful of the kinds of governments under which the framers of the Constitution (hereinafter, “the framers”) lived in earlier times.
In Europe and Great Britain, the power to declare war or shall we say, commit the nation to war rested solely with the individual leader of the nation be it a King, a Prince, a Potentate or in some cases a small cabal of aristocrats. The governed had no power to determine the merits of such a decision, nor could they opt out of service once committed. In essence, the King of England could awake one morning and decide that the nation should go to war against Norway.
The framers sought, by placing such authority in the hands of Congress, to avoid such an occurrence. Any and all offensive military engagements must be authorized by the U.S. Congress. Under the strictest interpretation of Article I, Section 8, it is arguable that the Congress can mandate action against a foreign power even if the President disagrees. I note with interest HR 4655 (aka, Iraq Liberation Act of 1988) which, “Declares that it should be the policy of the United States to seek to remove the Saddam Hussein regime from power in Iraq and to replace it with a democratic government.” This Bill was passed by a near unanimous vote and signed into law by the President. While there is no evidence that the President opposed the Bill, a near unanimous vote essentially made it veto-proof. Not in law of course but certainly in fact. Whereas the President had the authority to veto the Bill, there were more than enough votes in Congress to make it law notwithstanding.
On the other hand, under the Constitution, the President cannot under any circumstances take offensive military action without the expressed, written consent of the Congress. The President is however duty-bound to take defensive action whenever the interests of the United States come under attack or are in imminent threat thereof. Simply stated, the President must always meet force with force.
This authority was, for the first time in U.S. history, challenged before the Supreme Court during the Civil War. Namely, the Prize Cases (67 U.S. 635 [1863]), which states in summary that:
“A state of actual war may exist without any formal declaration of it by either party, and this is true of both a civil and a foreign war.”
To sum up the Prize Cases it must first be noted that this was a consolidation of several cases which came before the Supreme Court as a result of a Presidential blockade and subsequent seizure of cargo from ships entering blockaded Confederate ports. As the seized cargo was known as a “prize’ the cases were consolidated under the title, Prize Cases.
The appellants argued that the blockade was unconstitutional because, inter alia, Congress had never formally declared war. The President, as they alleged, did not have the authority to issue a naval blockade absent Congressional mandate(declaration). It is the opinion of Justice Grier that is most noteworthy herein:
“Let us enquire whether, at the time this blockade was instituted, a state of war existed which would justify a resort to these means of subduing the hostile force.
War has been well defined to be, "That state in which a nation prosecutes its right by force."
The parties belligerent in a public war are independent nations. But it is not necessary, to constitute war, that both parties should be acknowledged as independent nations or sovereign States. A war may exist where one of the belligerents claims sovereign rights as against the other.
By the Constitution, Congress alone has the power to declare a national or foreign war. It cannot declare war against a State, or any number of States, by virtue of any clause in the Constitution. The Constitution confers on the President the whole Executive power. He is bound to take care that the laws be faithfully executed. He is 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. He has no power to initiate or declare a war either against a foreign nation or a domestic State. But, by the Acts of Congress of February 28th, 1795, and 3d of March, 1807, he is authorized to called out the militia and use the military and naval forces of the United States in case of invasion by foreign nations and to suppress insurrection against the government of a State or of the United States.
If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader or States organized in rebellion, it is nonetheless a war although the declaration of it be "unilateral." Lord Stowell (1 Dodson 247) observes,
It is not the less a war on that account, for war may exist without a declaration on either side. It is so laid down by the best writers on the law of nations. A declaration of war by one country only is not a mere challenge to be accepted or refused at pleasure by the other.”
The Prize Cases have never been overturned by the Supreme Court, nor nullified by act of Congress. I would be hard pressed to understand the logic of such action considering the fact that the decision was nothing more than a restatement of common sense and logic.
For these and other reasons, I have long argued that The War Powers Act of 1973 (aka, “War Powers Resolution”) is unconstitutional. This Act, irrespective of the intentions of the Congress in drafting it, resulted in a de facto amendment to the Article I, Section 8 of the Constitution by granting the President the power to take offensive military action for a period of sixty(60) days without Congressional authorization or consent. Section 5(b) of Public Law 93-148, H.J. Resolution 542, reads:
“Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.”
This law has been used by Presidents over the years to the effect of committing U.S. forces to numerous military engagement around the globe, including but not limited to, Lebanon, Haiti, Somalia, Bosnia and Kosovo (in no particular order). The War Powers Act did not come as a result of a Constitutional amendment, rather it was the result of Constitutional ignorance on the part of the American public. This same ignorance is the sole reason why there is so much confusion over the very meaning of a “declaration of war.”
I encourage everyone to read the Constitution. I further encourage you to read the very documents upon which the Constitution was predicated, The Federalist Papers. Additionally, you may want to look into key Supreme Court decisions over the years which purportedly “interpret” the Constitution. This would be a pretty good starting point for improving your understanding of these and other issues. Don’t be discouraged or dissuaded from this task by those who proclaim the Constitution beyond the understanding of the average person. Those types seek to keep you in a perpetual state of ignorance and your ignorance serves only to solidify their power over you.
There was a time when the “church” forbade the reading of the Bible. The reasoning was much the same: it was beyond your ability to understand. In fact, reading the Bible could result in a charge of heresy. The “church” controlled the people by limiting their ability to gain their own understanding. Once these seemingly impregnable walls were breached, the collapse of the tyranny of the elites came to a crashing end. Don’t allow the new elites to place you back into bondage to ignorance.
