Congress Shall Have the Power To

  • by Pete O'Brien
  • 07-18-2021

There was an idea expressed recently that declarations of war are obsolete and that further, a President needs the flexibility to respond across the full-spectrum of armed conflict, that he needs to be able to move forces and engage threats, without getting wrapped around the process of obtaining some sort of Congressional approval.
This idea isn’t new. And was endorsed by Dean Acheson.
But, there is a small matter of the Constitution. Article one section 8 is specific:
The Congress shall have Power… 
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
No where does it add: “Or whenever the President deems it necessary or the Joint Staff has a new idea.”
There have been multiple cases where the US did engage in planned actions overseas: (the Quasi War with France, the actions against the Barbary Pirates (two times), Enforcing the ban on the Slave trade, the landings in Veracruz. In each case there was always some sort of Congressional Resolution supporting the action  and second, all of them were Naval Forces - the US was not establishing a large-scale, land-based force to conduct a sustained war. And with the exception of the Slave Trade patrol (which the Navy sustained for 41 years: 1820 - 1861) these events were carried fairly out quickly, the longest being the first Barbary Pirate War, which lasted 3 years.
If there is a place where the declaration of war “came off the rails” it is Korea. In the days following the North Korean attack into South Korea (June 25th, 1950) there was a discussion in the White House as to whether the President should seek Congressional approval before moving large numbers of US forces to South Korea. Dean Acheson - the  then Secretary of State - argued that the President had no need, as Commander in Chief gave he all the authority he needed, and that further, the time and argument spent gaining Congressional approval might do harm. Truman sided with Acheson.
Truman did, however, seek and obtain a UN Security Council Resolution for his actions.
We have not had an actual declaration of war since. Instead, we have had Congressional Resolutions (Lebanon 1957, Vietnam 1964, Lebanon 1983, Kuwait 1991, War on Terror 2001, Iraq 2003) There have also been a host of UN Security Council Resolutions. 
Which leads to an interesting question: if in virtually every case the President has eventually pushed through some sort of Congressional Resolution, or obtained the approval of the UN Security Council, can anyone legitimately argue that requiring the President to obtain a Declaration of War from Congress - which, of course, is a Congressional Resolution that happens to have the important word “war” in it - then doesn’t this disprove the argument that obtaining such a declaration would be too cumbersome, take too long, etc?
Returning to the core issue, we are talking about fighting a war. Should we really be arguing that the President can simply commit the nation to a de facto war without first obtaining approval from the representatives of the citizens?
Besides, what does using the word “war” get you? 
If Congress wishes to grant the President authority it need not use that word. But the important point is this: what the word “war” does get you is the understanding of the real government, that is, the citizenry. Those nagging first three words of the Constitution: We the People. The citizens are the real power, they delegate authority. And in the end if a war is going to be prosecuted shouldn’t they be in agreement? I would submit that using the word “war,” as in, “the United States declares War against …” has substantially more impact to the average citizen than do the words: “Authorization for the Use of Military Force.”
War is, in the end, not about lawyers or scholars, it’s about Citizens and Soldiers and their intellectual and visceral response. The word has meaning to them, and they are the ones who really count. Maybe one of the problems is that if we as a nation did “go to war,” the American people might expect more definitive results from the generals and admirals running these “authorizations of the use of military force.”
And while it is true that other countries don’t obtain declarations of war, why should we copy them? This smacks of the explanation of a child to his mother: “Everyone else did it.” To which, of course, every mother since Eve has responded similarly: “If everyone else jumped off the bridge, would you?”
Are there instances where the President needs to respond in self defense? Certainly. But as dire as that might be, and in the case of a nuclear response, it would be indeed dire, suggesting that the President has the authority to conduct an immediate response to an attack is not the same as saying that the President (“As Commander in Chief…” to use Acheson’s construct) has the authority to commit additional forces overseas.
Finally, there is a nagging problem, the problem of results. Many of the commitments of forces into combat ashore during the past 75 years have not ended well. We are now seeing that play out in Afghanistan. The Korean War - for which there was never a declaration of war - remains in limbo 71 years after the fighting began. That too, is not a positive benefit of not seeking a declaration. And Vietnam?
On the other hand, if this Constitutional requirement is ignored, why shouldn’t others be ignored?
It might be quaint and old fashioned, but in the end we either have a Constitution or we don’t. And the Constitution is crystalline in its clarity: Congress has the authority. No one else. If we want to change it, then do so. But until such time, we really need to abide by our laws, beginning with the Constitution itself.
The other option is that we can pick and chose, we ignore parts that are hard or inconvenient. And if we do, what else might we get rid of when things get hard? If we ignore the need to gain Congressional approval to fight a war, why not ignore some other stuff that gets in the way? You know, like Free Speech? Free Press? Freedom of religion? Unreasonable search and seizure? Due Process? Then we can really be like some other countries…