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April 1, 2000

On the Declaration of War

(Editor’s Note: For additional resources, see The Patriot’s Historic Documents page. This essay was updated in 2003.)

Article I, Section 8 of the United States Constitution plainly states, “The Congress shall have Power … To declare War.” Likewise, Article II, Section 2 of the Constitution grants that “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…” In this way, America’s Founders determined that the war-making and war-fighting responsibilities of the federal government would be divided among the branches: the Congress with the power to make war and the president with the power to carry it out. Yet, for all its complaints about the expansion of power in the executive branch, Congress has been complicit in this expansion by shirking one of its most sobering constitutional duties.

In all, five wars have been declared formally in the history of the United States: The War of 1812 (1812-1814), the Mexican-American War (1846-1848), the Spanish-American War (1898), World War I (1917-1918) and World War II (1941-1945). In the case of the Mexican-American War, hostilities between the two countries had commenced prior to the declaration of war, meaning that Congress’s act was more a recognition of America’s state of war with Mexico rather than a constitutional exercise of the legislative branch’s war powers. It goes without saying that the Mexican War would not be the last time Congress failed to execute its constitutional duty.

In fact, Congress has not exercised its power to declare war since World War II, some seven decades ago. Six declarations of war were issued as part of WWII: First against Japan following the December 7th attack on Pearl Harbor (December 8, 1941), then against Germany and Italy (December 11, 1941), and finally against Bulgaria, Hungary and Romania (June 5, 1942).

Regardless of how one considers the Mexican-American War, the United States’ undeclared wars far outweigh those conducted under Congress’s Article I authority. The first U.S. militarized conflict following WWII was the Korean War. In the internationalist spirit of the times, the Korean “police action” was undertaken by President Harry S. Truman under the authority of United Nations resolutions, giving an undeclared war legitimacy under the auspices of international law.

The undeclared Korean War (technically still in effect to this day) was followed by U.S. involvement in Vietnam where, again, Congress never issued a declaration of war. Unlike the Korean War, Congress sanctioned U.S. military action in Vietnam, though coming short of a declaration of war. From 1964 onward, the U.S. military presence in Vietnam was authorized under the Gulf of Tonkin Resolution, passed by Congress on 7 August 1964 in the wake of a minor naval engagement involving North Vietnamese torpedo boats and the destroyer U.S.S. Maddox off the North Vietnamese coast. Following the incident President Lyndon B. Johnson requested, and Congress approved, an authorization for the use of force.

A decade later U.S. involvement in Vietnam had escalated beyond anyone’s expectation, and Congress found itself apprehensive over the executive’s use of its wartime prerogatives apart from a congressional declaration of war. As a result, in 1973 the House and Senate gained two-thirds majorities to pass the War Powers Resolution over the veto of President Richard Nixon. Formally known as the War Powers Act of 1973 (United States Statutes At Large, Public Law 93-148), the measure requires the president to confer with Congress prior to engaging in any armed conflict, and further requires the withdrawal of U.S. forces from the conflict if Congress has not issued a declaration of war or otherwise authorized the use of force within 60 days.

On its own, the War Powers Resolution (WPR) need not be seen as a contradiction to the Constitution. There is value in allowing the Executive Branch some discretion in the use of military forces, when time does not allow for a congressional mandate or to do so would compromise the security of a military mission. Understood in this sense, the WPR clarifies the wartime prerogatives of the legislature and the executive, allowing each branch a degree of discretion in carrying out its constitutional functions. However, the WPR has not been interpreted in this manner. To the contrary, since its inception the WPR has seemingly replaced Article I’s war powers clause, allowing Congress to tacitly endorse military action while not taking responsibility for it.

Since Vietnam, the WPR has been used to provide a congressional mandate for U.S. military action abroad time and again, either directly or by implication. Aside from military commitments for humanitarian purposes, the United States has engaged in no fewer than seven conflicts which can indisputably be described as undeclared wars: Lebanon (1983-1984), Grenada (1983), Panama (1989), Persian Gulf War I (1991), Kosovo (1999), Afghanistan (2001-present) and Persian Gulf War II (2002-present). In no case was the threat so immediate that Congress could not be called upon to declare war, nor were any of these missions of such a nature that a declaration of war would have compromised the secrecy or security of the campaign. In each case Congress has passed a combination of resolutions, authorizations and appropriations to fight these war, but never has it declared war in the way the Constitution demands. Nevertheless, since 1973 the WPR has never faced a constitutional challenge before the courts.

Nor is executive war fighting without congressional war making unique to the past quarter century under the War Powers Resolution. During the John Adams presidency, the United States fought an undeclared war with France from 1798 to 1800, known as the “Quasi-War” or the “Half-War” because of what was (at the time) the conflict’s curious, quasi-constitutional nature. Thomas Jefferson and James Madison both fought wars against the Barbary States (1801, 1815), James Buchanan attacked Paraguay (1859), Woodrow Wilson faced off against the Bolsheviks in the Russian Civil War (1918), and Dwight Eisenhower dispatched the first U.S. troops to Lebanon (1958) in a war-fighting capacity. Not to be ignored, U.S. military campaigns against the American Indians and the American War Between the States offer special problems of their own. Regardless of the merits of each of these engagements, they were fought as matters of arbitrary executive will, with Congress either unable or unwilling to exercise its constitutional role.

As a result, the separation of powers so intrinsic to the fabric of the Constitution has unraveled. On the one hand, presidents are permitted to pursue war aims without serious check. Once “authorized” or “resolved” by Congress, Members of the legislative branch politically cannot afford to refuse funding for the conflict, or its geographic or military expansion. On the other hand, Members of Congress can remain ambiguous on their positions on undeclared wars, allowing incumbents to maximize voter appeal and minimize voter alienation. After all, is a vote to fund the troops in the field a register of support for the war, or of support for the troops only? In a state of undeclared war, support for the president’s conflict can be given and withdrawn at will, depending on the political winds of the hour. Only an Article I declaration of war can bring clarity, accountability and constitutionality to America’s wars. This is what our country’s soldiers and citizens deserve, and what our Constitution demands.

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