“The Two Words”: Declaring war without properly doing it, by Francisco Almeida.

Whether recent history is a guide for actions, the next weeks will produce a deeply unedifying dialogue about the meaning of the words “declare war”,corroborated in article I § 8 clause 11 of the North-American Constitution. 

President Obama has asked Congress to deliberate that he is authorized to use the armed forces of the United States in connection with the use of chemical weapons, or other weapons of mass destruction, in the conflict in Syria.

            There are already two general positions about such an authorizing resolution. One view regards it as lawless, on the grounds that any use of force is illegal unless Congress has passed a bill “declaring war”. John Nichols, of The Nation, for example, sees every military conflict since World War II as illegal, because presidents since Franklin Roosevelt have not obtained the formal declarations of war required by the Constitution.

Others believe that, in the words of Rep. Peter King, “President Obama is abdicating his responsibility as commander-in-chief and undermining the authority of future presidents” by even asking. This side believes that Congress’ only role is to “declare war” in the relatively few circumstances that is necessary; in all other times, the president may use the military as he sees fit.

“Declare war” was inserted into the document fairly late in the Philadelphia Convention. According to James Madison’s notes, the Committee of Detail’s draft gave Congress the entire power to “make war.” Madison records that he offered the change to make clear that a president could respond to a sudden attack. He records four delegates as supporting “declare war” while opposing any power by the president to commence a war; two delegates as opposing “declare war”, because they wanted Congress to embrace all of the war power; and one as urging that the power to “declare war” should be given to the president The Convention had a total of 55 delegates, though not all were present every day. The “declare” language was adopted by a vote of seven states to two.

The notes, for one thing, are not an official record, and were kept by a participant with his own axe to grind. All it is really known is that the Framers intention was to write the words “declare war” among the powers granted to Congress, and, by implication, denied to the president.

What about the original public meaning of the phrase? There doesn’t seem to have been a clear one. Almost at once, disputes arose about what the reference to “declare war” meant. Even before ratification, executive-power hawk, Alexander Hamilton, was pointing out in Federalist 25 that the ceremony of a formal denunciation of war has of late fallen into disuse. As Washington’s secretary of the Treasury, Hamilton argued in his “Pacificus” essays that all specific grants of power to Congress were narrow exceptions to the president’s plenary executive power. Congress is free to perform its own duties according to its own sense of them – though the Executive, in the exercise of its constitutional powers, may establish an antecedent state of things that ought to weigh in the legislative decisions. The powers of war and peace, he argued, were a concurrent authority, shared between executive and Congress.

Since that initial skirmish – over Washington’s 1793 Proclamation of Neutrality in the war between Britain and France -, the two branches have slowly pushed the line of control back and forth. According to a comprehensive 2011 report by the Congressional Research Service, presidents have sought “declarations of war” 11 times. On the other hand, they have sought and received authorization for the use of military force – in other words, Congressional permission to send the military into battle without invoking the “magic words” – on at least another 11 occasions. The earliest was John Adams’s request for permission to use Naval vessels to protect American shipping from French raiders. In the 1800 case of Bas v. Tingy, the Supreme Court held that this authorization created what Justice Bushrod Washington called a state of “imperfect” but “public” war, limited in scope but “authorized by the legitimate powers.”

In other words, both declarations of war and authorizations have been a part of American constitutional tradition since the earliest days. If every “undeclared” conflict is a violation of the Constitution, there is needed retroactive impeachment of Adams, Jefferson, Monroe, Eisenhower, Johnson, Reagan, and both Bushes.

A “declaration of war” has always been a specific policy tool – a blunt one, and one that many presidents, and Congresses, have chosen not to use. Authorizations, by contrast, permit the two branches to agree on limited war aims. An authorization can lapse without a formal surrender; it can permit military action short of total war. It’s a tool that any government needs, and any rational constitution provides.

In addition, international law, which is very much part of the Constitution, has changed during the last 115 years. The notion of a “declaration of war” is now both obsolete and meaningless. Under both the Kellogg-Briand Pact of 1928 and the United Nations Charter (1945), war is no longer a lawful tool of national policy. With few exceptions, states may use military force only in self-defense, or with the permission of the U.N. Security Council. Insisting that Congress “declare war” is not just simple-minded, but self-defeating: It is asking the nation to solemnly declare itself to be an international outlaw.

Of course, presidents can sometimes use force without any prior approval by Congress. Both declarations and authorizations have often come about after the president has committed troops to conflict. But in most cases, that commitment came about because – as in the Quasi-War with France and in Jefferson’s battle with Tripoli and Algiers – foreign forces had picked a fight with U.S. troops or civilians. No one, majorly, questions that the president has the power – and the duty- to defend the nation, its armed forces, and its civilians by force when a sudden attack is launched.

More controversial are other occasions when presidents have used force without authorization, arguing that they were obligated to do so under valid treaties. Treaties are, under Article VI § 2, as much a part of the supreme law of the land as the Constitution itself.

However, neither precedent suggests that a president can launch a military campaign against a foreign country in the absence of any attack, treaty obligation or sudden peace-threatening emergency requiring an immediate response. Obama insists that he has the authority to launch a Syria strike on his own, but that seems like standard presidential bluff. In Syria, the United States will be launching war from a standing start, and Congress must be involved.

Regarding a better understanding of the situation, let’s do something more than consulting the meaning of “declare war.” That language appears in the midst of Article I § 8, the Constitution’s epic catalogue of the powers of Congress. It is not just tucked in there, either. That is true, even if it is not concluded like the brilliant separation-of-powers theorist, Louis Fisher, which states that “the power to regulate commerce with foreign nations” was also “understood as closely related to the war power”.

Congress does not just get to “declare war” – it gets to define and punish piracy, to commission privateers, to create and maintain an army and navy, to call the militia into federal service, and to regulate and govern it even when it is under state command. It has authority over all places acquired by the federal government. Under Article II, to be sure, the president commands; nevertheless, other than that, the text tells us that the military belongs to Congress. If the president wants to use it, he pretty much has to ask permission. Congress can turn most of its power over to the president, by “declaring war”, or give him a more limited “authorization” to use it for specific ends.

Thus, whether Congress votes not to authorize a strike on Syria, Obama has no power up his sleeve to allow it. On the other hand, if Congress does authorize the use of force in Syria, the absence of magic words like “declare” won’t mean anything. The U.S nation will be legally committed to the use of force.

Bibliographic Reference

Al Jazeera.

[http://www.aljazeera.com/news/americas/2013/09/20139405044382793.html]. Accessed in: Sept. 04 2013

Freedom House.

[http://www.freedomhouse.org/article/syrian-crisis-case-greater-us-involvement]. Accessed in: Sept. 4 2013

Huffington Post.

[http://www.huffingtonpost.com/allan-gerson/intervention-in-syria-thr_b_3446230.html]. Accessed in: Sept. 3 2013

United States Senate.[http://www.senate.gov/civics/constitution_item/constitution.htm#a1]. Accessed in: Sept. 4 2013

Washington Post.

[http://articles.washingtonpost.com/2013-08-30/world/41596342_1_chemical-weapons-syrian-government-regime]. Accessed in: Sept. 3 2013

 

Franscisco Almeira is an undergraduate student at University of Brasilia (faaj.francisco@gmail.com).

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