The Bell Foundry

Rediscovering and recovering lost and endangered American liberties by studying our Founders' ideas, contemporaries, and etymology – because our united States "…are, and of Right ought to be Free and Independent States…"

War Powers: Who Has Them?


Can a U.S. President Declare War?

 

No.  Only Congress has the power to declare war.  A sitting President may wage (conduct, carry out) war after Congress has approved a military action.  Article I, Section 8 of the Constitution declares,

“The Congress shall have Power…To declare War…”

Once a military conflict is authorized by Congress, Article II, Section 2 of the Constitution allows the President to take charge and carry out operations pertaining to the conflict:

“The President shall be Commander in Chief of the Army and Navy of the United States…”

Do As Others Have Done

 

Amazingly, the most recent conflict that received a declaration of war by Congress was World War II.   truman
Since then, the U.S. has fought wars without such a declaration by Congress, and the consensus of recent Congresses and Presidents seems to be “do as others have done, not what the Constitution dictates.”  
The Wikipedia ‘War Powers Clause’ page states:

“The Korean War was the first modern example of the U.S. being taken to war without a formal declaration,[8] and this has been repeated in every armed conflict since.”

The reasons for the most recent U.S. military action, the 2014 airstrikes on ISIL in Syria, were addressed by President Obama in a White House speech on September 10, 2014.  An especially telling segment of his address seems to underscore the widespread and prevalent attitude regarding presidential war powers (emphasis mine):

“My Administration has also secured bipartisan support for this approach here at home. I have the authority to address the threat from ISIL. But I believe we are strongest as a nation when the President and Congress work together. So I welcome congressional support for this effort in order to show the world that Americans are united in confronting this danger.”

The President only has ‘the authority’ to wage war after Congress has declared war.  Instead of ‘welcoming congressional support,’ the President should be awaiting congressional decision.  See the President’s full address below:

What Is War?

 

A strategy that is often used to legitimize and excuse the skirting of a congressional declaration of war is the denial that certain military action can be construed as ‘war.’  However, this sort of hair-splitting quickly becomes quite ludicrous.  A Dictionary.com definition of the word ‘war’ is:

a state or period of armed hostility or active military operations”

and a Merriam-Webster dictionary definition is:

“an organized effort by a government or other large organization to stop or defeat something that is viewed as dangerous or bad.”

Most word definitions of war define it in very general terms, and do not even necessitate that the action involve nations.  In 2013, a Senate Foreign Relations Committee hearing on Syria was held “to debate the possible authorization of U.S. military action against the Syrian government” (not directly related to the Syrian airstrikes in 2014).  The hearing featured testimony by Secretary of State John Kerry.  At one point in the hearing, Kerry tried to redefine ‘war’:

SEC. KERRY: So let me be clear: President Obama is not asking America to go to war. And I say that sitting next to two men — Secretary Hagel and Chairman Dempsey — who know what war is. Senator McCain knows what war is. They know the difference between going to war and what President Obama is requesting now. We all agree, there will be no American boots on the ground.

Later in the hearing, Senator Rand Paul of Kentucky pointedly asked Kerry if he would continue to support military action if it was not approved by Congress.

SEC. KERRY: I can’t give you a different answer than the one I gave you. I don’t know what the president’s decision is, but I will tell you this, it ought to make you proud, because he still has the constitutional authority, and he would be in keeping with the Constitution.

Paul then harked back to the constitutionally-defined war powers, and also addressed Kerry’s previous misnomer regarding the definition of ‘war’ (emphasis mine):

SEN. PAUL: Well, I disagree with you there. I don’t believe he has the constitutional authority. I think Congress had — has this. Madison was very explicit when he wrote “The Federalist Papers,” he wrote that history supposes or the Constitution supposes what history demonstrates, that the executive is the — is the branch most likely to go to war, and therefore, the Constitution vested that power in the Congress. It’s explicit and runs throughout all of Madison’s writings. This power is a congressional power and it is not an executive power. They didn’t say big war, small war; they didn’t say boots on the ground, not boots on the ground. They said, declare war. Ask the people on the ships launching the missiles whether they’re involved with war or not.

A military action is an action of war, no matter how it is spun.  The Founding Fathers believed, as James Madison wrote to Thomas Jefferson, that the Executive Branch of the Government was prone to getting involved in wars, and needed to be checked by Congress:

“The constitution supposes, what the History of all Govts demonstrates, that the [Executive] is the branch of power most interested in war, & most prone to it.”

War Powers Resolution

 

The War Powers Resolution of 1973 was passed by Congress in order to define the President’s war powers more explicitly than the Constitution does.  bushpairThe constitutionality of the Resolution may be questionable, but even so, it only allows the President to initiate military force without congressional approval in the case of an attack on the U.S.  Mark Strand, in his 2013 article titled ‘Authorization to Attack: What Does the Constitution Say?’ affirms this:

“the only situation where the President has the constitutional authority to order armed forces to engage in hostilities without the authorization of Congress is “a national emergency” when the country has been attacked.”

Section 2, Clause c of the Resolution addresses the three situations in which the President may use military force.  The first two require Congressional authorization:

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

Conclusion

 

The subject of a homeland attack aside, there can be no question that the original intent of the Constitution regarding war powers was that the President needs to rely on Congress for a formal declaration of war before moving forward.

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