War Powers

                    The topic of discussion for this Constitution Monday comes from Article I.8.11:  "The Congress shall have Power … To declare War."  This provision in the United States Constitution grants Congress the authority and responsibility to declare war.

                    "In the Constitutional Convention some thought the President should have the power to declare war, while others favored the Senate.  It was finally decided that the profoundly serious business of declaring and conducting war should be the responsibility of the Congress" (W. Cleon Skousen, The Making of America - The Substance and Meaning of the Constitution, 440).

                    According to an article by John Yoo and James C. Ho in The Heritage Guide to the Constitution, page 128, "There have been only five congressionally declared wars in the history of the United States.  Of those, only the first, the War of 1812, constituted an affirmative declaration of war.  The remaining four, the Mexican-American War of 1846, the Spanish-American War of 1898, World War I, and World War II, merely declared the prior existence of a state of war.  Notably, those declarations were accompanied by express authorizations of use of force, suggesting a distinction between declarations of war and authorizations of force."

                    Skousen further explained that "there was no declaration of war in the Korean conflict or in the Vietnam War.  These were undertaken by the President as commander in chief of the U.S. armed forces because of U.S. commitments to the regional organization (SEATO) under the United Nations.  Failure of the Congress to declare war seriously complicated the administration of these wars."

                    The Heritage Guide noted that other hostilities were "specifically authorized by Congress through instruments other than formal declaration" and gave examples of war against Tripoli in 1802 and the Quasi War with France in 1798.  "Congress also expressly authorized the use of force … against Iraq in 1991 and 2002 and against the perpetrators of the September 11, 2001, attacks, all without issuing a formal declaration of war" (pages 128-129).

                    Recently there was a bit of a problem when President Barack Obama authorized our military to go into Libya without Congressional authorization.  When he authorized the military action on March 20, 2011, he apparently thought that only air support would be required.  Later "boots were on the ground" in Libya.  After U.S. forces had been in Libya for sixty days, Congress was asking when Obama would come to them for authorization.  Obama and other Democrats were claiming that Congressional authorization was not required because the military was supposedly "limited" in "nature."  U.S. military forces are still in Libya at the present time, more than six months after Obama first authorized the military action.

                    Obviously, member of the House of Representatives thought differently.  Representatives Dennis Kucinich (D-Ohio) and Walter Jones (R-N.C.) filed a lawsuit against President Obama, which argues that he violated the law by not seeking congressional authorization for the U.S.-led Libya mission.  "With regard to the war in Libya, we believe that the law was violated.  We have asked the courts to move to protect the American people from the results of these illegal policies," said Kucinich.

                    The complaint [http://kucinich.house.gov/UploadedFiles/Libya_Complaint_Master.pdf]says, "This is an action for injunctive and declaratory relief to protect the Plaintiffs and the country from a stated policy of Defendant Barack Obama, President of the United States, whereby a president may unilaterally go to war in Libya and other countries without the declaration of war from Congress required by Article I, Section 8, Clause 11 of the U.S. Constitution."

                    The lawsuit was backed by Republican Representatives Howard Coble (N.C.), John Duncan (Tennessee), Roscoe Bartlett (Maryland), Ron Paul (Texas), Tim Johnson (Illinois), and Dan Burton (Indiana) and Democratic Representatives John Conyers (Michigan) and Michael Capuano (Massachusetts).

                    On Friday, June 24, 2011, The US House of Representatives voted against an authorization for the military action in Libya.  The opposing vote included both Republican and Democrats.  The House, however, did not cut funding for the war.  The United Nations Security Council authorized the Libya intervention, and so the action is legal under international law.  They apparently acted because of an immediate humanitarian crisis was caused when Muammar Qaddafi sent jets and tanks to bomb his own people.  NATO allies thought they should intervene just as they had done in the Balkans in the 1990s.  U.S. military forces are still in Libya at the present time, more than six months after Obama first authorized the military action.

                    The Heritage Guide continued:  "Whatever the domestic constitutional implications for presidential power to initiate hostilities, the Declaration of War Clause gives to Congress certain powers under international and domestic statutory law.  Nonetheless, with the growth of international law, the significance of formal declarations has declined.  For example, the Geneva Conventions of 1949, which guarantee various enumerated rights to lawful combatants, prisoners of war, and civilians, explicitly apply to all armed conflicts between contracting nations and not just to declared wars.  Congress's power to declare war continues to have important statutory ramifications, nonetheless.  A particularly dramatic example is the Alien Enemy Act …, which authorizes the President to detain and deport citizens of enemy nations, but only following either a declaration of war or an attack upon the United States" (page 129).

                    The Founders agreed that the President of the United States, as Commander in Chief of the Armed Forces, was vested with the power to conduct war by Article II as an "executive Power."  The President has the "power to repel invasions" if and when they occur.

                    Our Founding Fathers did not want any more wars.  They had seen enough as shown by the following quotes from Skousen of how our Founding Fathers felt about war.  "No country, perhaps, was ever so thoroughly against war as ours" (Thomas Jefferson).  "I have seen enough of one war never to wish to see another" (Jefferson).

                    "I would try anything, and bear anything that can be borne with safety to our just liberties, rather than engage in a war … unless compelled to it by dire necessity in our own defense" (Benjamin Franklin).  "At length we are in peace, God be praised, and long, very long, may it continue" (Franklin).  "In my opinion, there never was a good war or a bad peace" (Franklin).

                    Quotes and ideas other than noted are from W. Cleon Skousen in The Making of America, pp. 440-441.