War and the U.S. Constitution
by Fred E. Foldvary, Senior Editor
"The Congress shall have Power ... To Declare War."
--- Article I, Section 8, Clause 11, The Constitution of the United States of America.
The powers of the federal government of the USA are authorized by the Constitution, and legally the federal government only has the power specifically provided for in the Constitution. The Constitution of the USA divides the federal government into three independent branches, and authorizes the powers of each branch. Each branch of government may have no power other than that authorized by the Constitution.
The authors of the Constitution endowed Congress with the power to declare war. Once war is declared, Article II, Section 2, authorizes the President, as the Commander in Chief, to execute the war. But the Constitution does not authorize the President to declare war. James Madison wrote in 1793 about the "fundamental doctrine of the Constitution that the power to declare war is fully and exclusively vested in the legislature." At the constitutional convention, George Mason of Virginia stated that the President "is not safely to be entrusted with" the power to decide on war. The framers clearly did not want just one man to put the country at war.
May the President start a war without a declaration of war? In old Europe, kings were constantly taking their countries into war, and the authors of the Constitution wanted to avoid this. By requiring Congress, not the President, to initiate war, the authors wanted to assure broad support for any war, since Congress more widely represents the people than does the President.
Yet since World War II, the U.S.A. has fought many wars, with no declaration of war. The excuse in the Korean War was that this was a United Nations war, and the U.S. was participating under the U.N. But the power "to declare war" means that the U.S. may not engage in a war unless Congress explicitly declares that the U.S. is at war. President Truman violated the Constitution and set down a very bad precedent. If a power is allocated to Congress, it may not be delegated to the President.
The War in Vietnam did not have a U.N. cover. It began with U.S. "advisers" and then, under President Johnson, massively escalated to a half million troops. Congress passed the Gulf of Tonkin resolution and provided the funds for the war, but did not declare war. One problem with that resolution is that it is not clear that the members of Congress intended this to be a general go-ahead to conduct the war rather than just repelling attacks against U.S. ships.
The war declaration is important because a state of war transforms the country. The entire country is at risk of being attacked, and the war becomes top priority for everyone, whether they like it or not. Because this is so serious, an explicit and specific declaration makes it very clear that this is what Congress, on behalf of the people, intends. By merely passing a resolution and providing funds, Congress is going along with a Presidential war rather than taking responsibility for starting a war.
Now the U.S. is at war again, and once more, there has been no declaration from Congress. Without a declaration of war by Congress, the war in Iraq violates the U.S. Constitution. Likewise, Congress should have declared war on the Taliban regime in Afghanistan if the members wished to send U.S. troops to fight there.
In 1970, the Commonwealth of Massachusetts challenged the Constitutionality of the Vietnam War (Massachusetts v. Laird, U.S. Sup. Ct. Nov. 9, 1970). It passed a law stating that no resident of Massachusetts "shall be required to serve" in the armed forces abroad if the armed hostility has not been declared a war by Congress. The attorney general of Massachusetts asked the U.S. Supreme Court to hear its case to test the legality of the Vietnam War.
In 1801, the Supreme Court unanimously ruled that Congress alone had the "whole powers of war" (Talbot v. Seeman, 1801). But, sadly, in 1970, the Supreme Court declined by a six to three vote to hear the Massachusetts case. Also, in Berk v. Laird, 39 U.S.L.W. 2201 (E.D.N.Y., Sept. 16, 1970), the Court held that Congress had authorized through legislative acts the use of U.S. Armed Forces in Vietnam, thereby not requiring a formal declaration of war.
On February 24, a federal district court dismissed a lawsuit (Doe v. Bush) challenging President Bush's authority to wage war against Iraq without explicit congressional authorization (http://jurist.law.pitt.edu/forum/forumnew99.php). The court ruled the dispute to be a non-justiciable political question. The U.S. Supreme Court and the lower federal courts have thus failed to uphold the Constitution. This amounts to a tragic judicial failure.
Some argue that the U.S. Constitution is a "living" document that should not be interpreted so strictly. But the very purpose of the Constitution is to constrain the power of government, otherwise the rights that the Constitution protects become meaningless. Some also argue that declaring war is old fashioned and just not done any more. But there is a good reason for declaring war, since it makes explicitly makes Congress responsible, and puts each member of Congress on record as having either voted yes or no.
The power to declare war is related to the power to pass legislation. If the president may declare war, he is in effect passing legislation, which Congress may then either veto or agree to. But the Constitution has it the other way; the President may veto a law passed by Congress.
The authors of the Constitution wanted to avoid executive wars. In the current War in Iraq, Congress abdicated its authority by letting the President decide whether to start hostilities. The October 2002 Resolution - House Joint Resolution 114 - is said to authorize the President to "use the Armed Forces" for national security and to enforce U.N. resolutions. After the war started, the President asked Congress for funds. This puts Congress in the bad position of either going along with the war or refusing to provide funds to U.S. troops already fighting. It is all backwards and rips the whole Constitution to shreds.
Some argue that the War Powers Act passed by Congress in 1973 authorizes the President to start a war so long as he notifies Congress, which then has 60 days to authorize the action. If Congress disapproves, the president must withdraw forces after another 30 days. But this "act" was illegal because it was passed by joint resolution rather than by the individual chambers of Congress, and it unconstitutionally delegates power to the President..
Many historians agree that the framers of the U.S. Constitution intended to limit war-making to Congress. Over 1,200 historians signed a petition to that effect. It states, "Congress has not asserted its authority to declare war for over half a century, leaving the president solely in control of war powers to the detriment of our democracy and in clear violation of the Constitution." (See http://historynewsnetwork.org/articles/950.html)
If the U.S. is directly attacked, the President should act to repel the attack, but Iraq has not attacked the U.S., so the war is unconstitutional. Congress should immediately hold a vote on whether to declare war, and then we should amend the Constitution to make it clear that the Commander in Chief may not initiate armed hostility unless Congress has declared war.
-- Fred Foldvary
Copyright 2003 by Fred E. Foldvary. All rights reserved. No part of this material may be reproduced or transmitted in any form or by any means, electronic or mechanical, which includes but is not limited to facsimile transmission, photocopying, recording, rekeying, or using any information storage or retrieval system, without giving full credit to Fred Foldvary and The Progress Report.
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