ON DECLARING WAR By M. Kelly Tillery ne need not harken back to Korea or Vietnam to study modern U.S. military interventions, for in just the O last quarter century, we have intervened in Kosovo, Bosnia, Afghanistan, Iraq, Libya and most recently, Syria. All without congressional declaration of war. Since the end of WWII, we have expended over two trillion tax dollars and killed and maimed hundreds of thousands of our own and other nations’ citizens in a myriad of undeclared wars. Seventy-five years ago, on June 5, of 1812 (United Kingdom), The 1942, Congress anti-climatically last Mexican-American War (Republic exercised its exclusive constitutional of Mexico), The Spanish-American power to declare war – on the War (Spain), World War I (Germany hapless Axis nations of Bulgaria, and Austria-Hungary) and World War Hungary and Romania. In the II (Japan, Germany, Italy, Bulgaria, ensuing years, this nation’s armed Hungary and Romania). Yet, in at services have been engaged in active least 129 other instances, a president combat against others virtually every authorized military action in and/ minute of every day – all without or against another nation or people Declaration of War. without securing (or even seeking) Congress has declared war only Congressional Declaration of War. 11 times, in five wars – The War What is to explain these repeated, 34 the philadelphia lawyer Winter 2017 “The Constitution supposes, what the history of all governments demonstrates, that the executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war to the legislature.” ~ James Madison to Thomas Jefferson, 1798 “ The Congress shall have the power … To declare war, … ” ~ U.S. Constitution Article I, Section 8, Clause 11 September 17, 1787 apparently unconstitutional, acts of our chief executives, both of Marque and Reprisal (1815, actually), or tried to “work Republican and Democrat? corruption of blood” or quarter soldiers in any house, etc.? CONGRESSIONAL WAR POWERS But, are these of the same magnitude and import as the breath- taking authority to declare war? While the Constitution gives Congress alone the power to The only other such significant constitutional provision “declare war,” it also grants Congress at least 10 other specific which has fallen into similar desuetude is the “advice” portion war powers: (1) to provide for the common defense; (2) to of the Senate’s “advice and consent” limit on the presidential define and punish piracies and felonies committed on the power to make treaties. Washington took this provision high seas, and offenses against the law of nations; (3) to grant seriously when in August 1789 he brought Secretary of War letters of marque and reprisal; (4) to make rules concerning Knox’s treaty with the Creek Nation to the Senate. In sincere captures on land and water; (5) to raise and support armies; effort to seek the Senate’s “advice,” Washington was so (6) to provide and maintain a navy; (7) to maintain rules for disgusted with his treatment by the first Senate that he resolved the government and regulation of the land and naval forces; never to meet with them again. And with that unilateral, (8) to provide for calling forth the militia to execute the laws precedent-setting decision, senatorial treaty “advice” was of the Union, suppress insurrections and repel invasions; (9) forever read out of the Constitution. No president ever again to provide for organizing, army and disciplining the militia, sought the “advice” of the Senate on a treaty. and for governing such part of them as may be employed in ACTUAL DECLARATIONS the service of the United States; (10) to prevent any state, without Congress’ An examination of the 11 consent, from keeping troops, or ships And frankly, the Declarations reveals several interesting of war in times of peace, . or engage and common elements and some in war, unless invaded, or in such real “war power,” not so. The first three were “acts” imminent danger as will not admit a of Congress, the latter nine “joint delay. (Article I, Section 8) or at least that resolutions.” A distinction without Considering these awesome a difference, perhaps, as all passed, congressional war powers, and the claimed by president though requiring only a majority, actual and frequent war-making after president, is most by more than two-thirds majority of presidents since Jefferson, sans of each House. All were signed into declaration, bested the Barbary Pirates based only upon “law” by the president. in 1803, one might expect to find a Curiously, considering the tension similar, if not greater, litany of war three words - between the president and Congress powers specifically bestowed on the “commander in in this realm, each specifically president under Article II of the U.S. provides that it “hereby authorizes and Constitution. chief.” directs” or “directs and empowers” the Au contraire, mes amis. Article II president to use “the entire land and provides only that (1) the executive Naval forces” of the U.S. to “carry on power is vested in the president; (2) the president shall take the war” and the last nine say specifically “to bring the conflict an oath to “faithfully execute the office of President of the to a successful termination.” If the “Commander in Chief” United States, and will to the best of his [my] ability, preserve, already had such power, why, one wonders, did Congress need protect and defend the Constitution of the United States;” (3) to vote a declaration to “authorize and direct” him? the president shall be commander in chief of the Army and With the House Declaration of War Against Germany Navy of the United States; and (4) he or she shall have the in 1917, Congress settled on a template (drafted by some power, by and with the advice and consent of the Senate, to unheralded State Department functionary) of three simple make treaties. paragraphs: (1) the actual declaration; (2) a “WHEREAS” That’s it. And frankly, the real “war power,” or at least that clause referencing unspecified “acts of war” committed by claimed by president after president, is based only upon three the enemy; and (3) the authorization of the president to use words - “commander in chief.” Never has so much power U.S. forces to carry on the war and to bring it to a “successful based upon so few words affected so many. At least in a conclusion.” democracy. None specify the actual “acts of war” perpetrated, how QUAINT AND ARCHAIC? the president is to use our forces, or what would constitute a “successful conclusion.” However, each was preceded by Has the congressional power to declare war become just a a presidential request for same, which included a recitation quaint, archaic, chivalrous notion not to be taken seriously in of the “acts of war” justifying a declaration, including some modern times? Sure, the Constitution has some musty old evidence thereof. In the last five, Congress acknowledged provisions – when is the last time Congress granted Letters that the offending nation had declared war on the U.S. first. 36 the philadelphia lawyer Winter 2017 “It should be more easy to get out of war than to get into it.” Presidents and Congress often, if not from the first in 1798 for the “quasi- the most unprecedented and incredibly always, attempted to present the public war” with France, to the last for Iraq broad authority ever granted to any with the acts purporting to justify (2002). Congress and the president president. And that worked out so well. “war,” some of the evidence thereof, have used this euphemistic vehicle Yet what of the other 129 or so uses the military plan and the goals for the to make war, even though there is no of military forces in and against other peace. provision for same in the Constitution. nations by presidents, without any Each declared war was ended by Each does all that a declaration does congressional authorization, much a treaty negotiated by the president, except actually “declare” that a “state less any request for same, essentially, using his constitutional power and of war” exists between the U.S. and the instances of presidents following the “consented” to by the Senate (no nation (or other) against which military old saw, “better to beg forgiveness “advice”), by at least the required two- forces are to be used. (or ratification/funding), than to thirds vote. Congress issued 11 authorizations: ask permission.” Is that what the It is curious that the Constitution 1798 – France – twice; 1802 – Regency Constitution provides? Or what the requires a majority of both houses of of Tripoli; 1815 – Regency of Algiers; framers intended? And do we or should Congress to declare war, but only a 1955 – to protect Formosa and The we care? two-thirds majority of one house to end Pescadores; 1957 – to protect any JOINT RESOLUTION one, at least, if, as is common, done by nation in the Middle East against CONCERNING THE WAR POWERS treaty. As Constitutional Convention armed aggression from any Communist OF CONGRESS AND THE Delegate Oliver Ellsworth (Conn.) country; 1964 - North Vietnam; 1983 PRESIDENT opined, “It should be more easy to get - Lebanon – removal of all “foreign out of war than to get into it.” forces;” 1991 – Iraq (“Persian Gulf Better late than never, several months So, each declaration was (1) War”); 2001 - “those responsible for the after the last U.S. troops left Vietnam, requested by the president, (2) passed recent attacks of 9/11”; and 2002 – Iraq, on Nov. 7, 1973, Congress attempted by at least a majority of both houses, again/still.