War Powers Clause

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Article I, Section 8, Clause 11 of the United States Constitution, sometimes referred to as the War Powers Clause, vests in the Congress the power to declare war, in the following wording:

[The Congress shall have Power...] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

A number of wars have been declared under the United States Constitution, although there is some controversy as to the exact number, as the Constitution does not specify the form of such a declaration.

History and usage[edit]

Five wars have been declared by Congress under their constitutional power to do so: the War of 1812, the Mexican-American War, the Spanish-American War, World War I, and World War II.[1]

In a message to Congress on May 11, 1846, President James K. Polk announced that Texas was about to become a state. Consequentially, Mexico then threatened to invade Texas, upon which the President amassed troops in the area of Corpus Christi. Texas then became a state, and US troops moved into an area in which the new international boundary was disputed. Mexican troops moved into the same area, and the two forces clashed. The President then stated "after reiterated menaces, Mexico has passed the boundary of the United States, has invaded our territory and shed American blood upon the American soil. She has proclaimed that hostilities have commenced and that the two nations are now at war."[2] Some in Congress wondered if this were so, including Abraham Lincoln. He wrote in a letter to his law partner:

“Let me first state what I understand to be your position. It is, that if it shall become necessary, to repel invasion, the President may, without violation of the Constitution, cross the line and invade the territory of another country; and that whether such necessity exists in any given case, the President is to be the sole judge...But Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose - and allow him to make war at pleasure…. If, to-day, he should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him? You may say to him, ‘I see no probability of the British invading us’ but he will say to you ‘be silent; I see it, if you don't.’

“The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood.”[3][4]

Then-congress member Lincoln moved for a Resolution issuing the President interrogatories (questions) so that Congress could determine for itself the exact "spot" of the conflict and whether the Congress believed it to be inside the United States.[5]

Regardless, Congress did, by roll-call vote, declare war. House Roll Call Vote, Senate Roll Call Vote, Published Declaration of War, 1, Published Declaration of War, 2

If it was true that the war was ongoing, because the President had to repel a sudden attack, this was contemplated by the framers of the Constitution, in Philadelphia, during August of the summer of 1787, when the wording of the proposed Constitution was being finalized, the draft read that Congress could "make war." This was changed to "declare war" specifically in order to allow the President to defend the country from sudden attacks. "Mr. Madison and Mr. Gerry moved to insert "declare," striking out "make" war; leaving to the Executive the power to repel sudden attacks."[6] The President taking decisive action to defend the country does not relieve Congress of its responsibility, and Congress is obligated to vote on whether to declare and continue the war.

American Presidents often have not sought formal declarations of war, instead maintaining that they have the Constitutional authority, as commander in chief (Article Two, Section Two) to use the military for "police actions". According to historian Thomas Woods, "Ever since the Korean War, Article II, Section 2 of the Constitution — which refers to the president as the 'Commander in Chief of the Army and Navy of the United States' — has been interpreted to mean that the president may act with an essentially free hand in foreign affairs, or at the very least that he may send men into battle without consulting Congress."[7]

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. Beginning with the Vietnam War, however, Congress has given other various forms of authorization to do so. Some debate continues as to the appropriateness of these, as well as the tendency of the Executive Branch to engage in the origination of such a push, its marketing, and even propagandizing or related activities to generate such support.

Thus in light of the speculation concerning the Gulf of Tonkin Incident and the possible abuse of the authorization that followed, in 1973 Congress passed the War Powers Resolution, which requires the President to obtain either a declaration of war or a resolution authorizing the use of force from Congress within 60 days of initiating hostilities with a full disclosure of facts in the process. Its constitutionality has never been settled, and some Presidents have criticized it as an unconstitutional encroachment upon the President. In 2007, University of Virginia professor Larry J. Sabato proposed a Constitutional amendment in his book A More Perfect Constitution that would settle the issue by spelling out the exact powers of each branch in the Constitution itself. One counter-argument is that the Constitution is a "living document" which has survived for over 200 years because not everything is "spelled out." In the area of the War Powers Clause, the flexibility provided by the requirement for a Congressional statute permitting war (a declaration of war) and Constitutional interpretation could be sufficient. The President could defend the country, but not - by himself - use the military offensively. This would not require a Constitutional amendment or a statute like the War Powers Resolution; it has been with us since 1787.

Some legal scholars maintain that offensive, non-police military actions, while a Quorum can still be convened (see Continuity of Government), taken without a formal Congressional declaration of war is unconstitutional since no amendment with two-thirds majority of states has changed the original intent to make the War Powers Resolution legally binding. However, the Supreme Court has never ruled directly on the matter and to date no counter-resolutions have come to a vote. In the absence of a determination by the US Supreme Court, the Separation of Powers produces a stalemate on this issue.

Constitutional convention debate[edit]

As to the Philadelphia Convention and the intent of the American founders, there was only one delegate who suggested giving the Executive the power to take offensive military action: Pierce Butler of South Carolina.[9] He suggested the President should be able to, but in practice would have the character not to do so without mass support. Elbridge Gerry, a delegate from Massachusetts, summed up the majority viewpoint saying he "never expected to hear in a republic a motion to empower the Executive alone to declare war." George Mason, Thomas Jefferson, and others voiced similar sentiments.[10]

Supreme Court cases[edit]

Other Court cases[edit]

See also[edit]

References[edit]

  1. ^ "Congressional Power to Declare War". The people's Guide to the United States Constitution. The people's Guide to the United States Constitution. Retrieved 28 August 2013. 
  2. ^ WETA last visited 1/22/2011
  3. ^ Abraham Lincoln: a Documentary Portrait Through His Speeches and Writings. Don E. Fehrenbacher, editor., Stanford University Press, Stanford. CA (1996)
  4. ^ Lincoln on Democracy, Mario M. Cuomo and Harold Holzer (Fordham University Press, 2004) pp. 36-37.
  5. ^ http://memory.loc.gov/cgi-bin/ampage?collId=mal&fileName=mal1/000/0007000/malpage.db&recNum=0 last visited 1/21/2011
  6. ^ 2 Farrand Records 317
  7. ^ Woods, Thomas (2005-07-07) Presidential War Powers, LewRockwell.com
  8. ^ "The Constitution & War: Congress Declares & President Wages". www.ponderpost.com. PonderPost. Retrieved 1 September 2013. 
  9. ^ Fisher, Louis (April 10, 2008). "“War Powers for the 21st Century: The Constitutional Perspective”- Statement presented in appearance before the House Committee on Foreign Affairs". Library of Congress. Retrieved 2013-08-27. 
  10. ^ Max Rerrand, The Records of the Federal Convention of 1787 (rev. ed. 1937) at 318-219

Further reading[edit]

  • Fisher, Louis (2004) Presidential War Power, 2d Rev. Edition. University Press of Kansas
  • Hendrickson, Ryan C. The Clinton Wars: Congress, the Constitution and War Powers. Vanderbilt University Press, 2002
  • Lawson, Gary, "Delegation and Original Meaning" (October 2, 2001). Virginia Law Review, Vol. 88, April 2002
  • Madison, James. Federalist No. 45, The Federalist Papers
  • Woods, Thomas. Presidential War Powers, LewRockwell.com
  • Yoo, John C., "War and the Constitutional Text" . University of Chicago Law Review, Vol. 69, No. 4, Fall 2002
  • 2 Records of the Federal Convention of 1787, at 318-19 (Max Farrand ed. 1937).