So, in my column a couple of weeks ago I posed the offhand question "Whatever happened to Congress having to declare war?" Well, a friend of mine actually took the time to respond, informing me that the War Powers Act of 1973 gives the President 60 days to commit American troops to combat before Congress gets into the act. I was surprised and displeased by this fact. Why they'd give him that power - especially when Nixon was "him" - I just couldn't grok.
Well, the more I thought about it, the more I wanted to know what the full story was. So I've done some research. And, apparently, the issue of who has the authority to commit American troops to combat has a long and divided history, going all the way back to the founding of the Republic.
No, not republic.org.
Of the fourteen shooting wars in which the United States has been involved - and this is a fairly subjective list - only five have been declared. Those five are:
And this doesn't include the multiple dozens of times our military has been under fire, ranging from the Phillipine Insurrection following the Spanish-American war to the invasion of Grenada in 1983 to the invasion of Panama in 1989 to remove Manuel Noriega.
Obviously, we can get involved in some fairly major conflicts - in fact, wars - without an actual declaration of war.
So what gives?
Article I of the Constitution gives to Congress several powers, including "To declare War", "To raise and support Armies", "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 provide for organizing, arming, and disciplining the Militia", and "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers ... and [those powers] "vested by this Constitution in [the President] ...."
Then, Article II, Section 2, Clause 1 states that "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States".
It seems fairly clear that Congress gets to call up the armed forces, and the President gets to run them when called up. And herein lies the major font of contention. When the Constitution was created, the framers did not envision the United States having a standing army. In fact, many of them were dead set against it. And, unfortunately, the division of powers with respect to an army which needed mobilization does not mesh neatly with the modern scenario wherein we maintain a standing army.
The need in the modern world for America to have a standing army is pretty hard to dispute. The time it would take to create an army of any quality is simply too long in relation to the time in which such an army could become necessary. I'm not going to argue about the possibility of tyranny with the wacky libertarians among you. The culture both of American society in general and within the armed services make such fears almost laughably paranoid. But leaving that aside, we simply can't prosecute a necessary war from a standstill any more.
So, we have to have a standing army. Does this mean that the president therefore gets to run it as he sees fit, since it has already been raised and supported?
The President thinks so. At no point in the Constitution does it specify if and when a declaration of war is actually necessary. And, for the most part - especially in more recent years - the President has been successful in using his war-making powers independently of Congress.
There have been several avenues used for war-making aside from a Congressional declaration. One such, used in the Korean War and the Persian Gulf War, is the United Nations. As the country's chief negotiatior, the President in both cases committed American forces to war under the aegis of a United Nations resolution.
Another has been the joint Congressional resolution, which gives the President specific authority to use force for a specific situation as he sees fit. Eisenhower made use of this device several times, and it was the basis for Lyndon Johnson's escalation of the Vietnam War - Congress passed a 1964 joint resolution authorizing the President "to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression." For the Persian Gulf war, President Bush (v 1.0) also got a joint resolution authorizing his use of force against Iraq.
So, that's more or less where we are today. Whoever is President asserts his right to act unilaterally, but in general tries to legitimize his actions by obtaining the specific authorization of Congress, generally through a joint resolution.
Now, what's the story with the War Powers Act of 1973, that I started with? What about those 60 days?
By 1973, Congress was sick of fighting with the President over the conduct of the war in Vietnam. To influence events, they used their power over the pursestrings to specifically forbid any money being used for specific military actions, in particular the bombing of Cambodia. The law was vetoed, but did force Nixon to compromise with Congress and stop the bombing, and it led Congress to contemplate further measures to curtail the President's warmaking abilities.
As the Nixon presidency began its implosion into scandal later that year, Congress passed the War Powers act of 1973. It allows for only three situations where United States forces can be introduced into hostilities: A declaration of war, specific Congressional authorization, or a national emergency caused by a foreign attack. In the third case, the President has forty-eight hours to submit a full report to Congress. Sixty days after the submission of the report, the President must either remove U.S. forces or have received from Congress additional time or a resolution authorizing the use of force. Or, a declaration of war.
No President has accepted the War Powers Act as constitutional. It gives Congress the power to force the President to withdraw U.S. troops by passing a concurrent resolution, which then need not be signed (and may not be vetoed) by the President yet has the power of law. This in effect gives Congress a legislative veto over the President, which has in several similar Acts been ruled by the Supreme Court to be unconstitutional. The War Powers Act itself has never been before the Court.
Since 1973, Congress has never pushed the issue. In incidents ranging from Granada to Bosnia, the President has consulted with Congress regarding military action (although always maintaining that he didn't have to), and Congress has never asked for the (ostensibly mandatory) withdrawal of troops after sixty days. Generally, the political climate has been such that Congress was quite willing to let the President take the blame for whatever military adventure he was embarked on.
So what about now?
Whether you like it or not, Bush (v 2.0) went and got Congressional approval for his own Iraqi adventure. Meaning that, Constitutionally speaking, he's in the clear. And that one cannot say that the U.S. government is anything but behind the war.
- Sun Ra
P.S. My wife had a rather good idea regarding the separation of war powers. Although we do have a standing army, at this point in time a large percentage of it is in the form of armed reserves. Would it not be precisely in the spirit of the Constitution to have a law imbuing Congress, and not the President, with the power to call them up? I think so. If the President can achieve his military aims with just the active service, then he can do it without explicit Congressional approval. If he needs the reserves, he should have to go to Congress to get them.
Columns by Sun Ra