Can the President lead us into war without a declaration of war?

Discussion in 'Politics' started by fromtheright, Dec 28, 2005.

  1. fromtheright

    fromtheright
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    John Yoo, in The Powers of War and Peace makes a very powerful historical, Constitutional case that it is not required. The following is from an interview with him at THIS LINK:

     
  2. KenH

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    Doesn't really matter since the federal government doesn't really follow the U.S. constitution much any more.

    The problem with the purse string argument is that if the Congress cuts off funds for a war, say the current war in Iraq, then folks on the Right would accuse them of turning their backs on our military personnel. Therefore, the bar is too high to use.

    I think we should only send troops into another country to fight based on a declaration of war by the U.S. Congress.
     
  3. fromtheright

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    Perhaps I should have better worded the question: Does the Constitution require that Congress declare war before the President can legally enter us into a war? BTW, your argument that the government doesn't follow the Constitution any more completely negates your whole argument against the phone call surveillance.

    Does the Constitution require a declaration of war?
     
  4. KenH

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    My answer then is "yes".
     
  5. fromtheright

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    The problem with the purse string argument is that if the Congress cuts off funds for a war, say the current war in Iraq, then folks on the Right would accuse them of turning their backs on our military personnel. Therefore, the bar is too high to use.

    Nonetheless, it is the bar provided by the Constitution. Further, it doesn't mean that Congress completely cuts funding. They could perhaps reduce it significantly. Even so, it is a tool given to Congress by the Constitution to end a war that they believe should not have been initiated.
     
  6. fromtheright

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    Oops, double post.
     
  7. fromtheright

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    Some of Yoo's arguments, so far:

    1. It is not required as a matter of international law. From the book:

    2.

    3. In the Virginia ratifying convention, in debating the very topic of Congressional checks on the President's authority to make war, a Congressional declaration of war was NEVER argued as such a restraint.

    4. The meaning of the term at the time:

    5. Placement within the Constitution:

    6. They had examples of how to word such an authorization. Congress could have but did not borrow the wording from either the Articles of Confederation (as they did in other instances) or from the various state constitutions.

    7. The example of the Declaration of Independence, which did not authorize military resistance to Great Britain, which had been ongoing for more than a year. It instead "announced the legal relationship between the mother country and its former colonies....The Declaration's importance was not in authorizing combat, but in transforming the legal status of the hostilities between Great Britain and her colonies from an insurrection to a war between equals."


    Arguments/evidence to the contrary regarding the Constitutional meaning?

    [ December 28, 2005, 01:58 PM: Message edited by: fromtheright ]
     
  8. Johnv

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    The Constitution expressly states that the power to declare war falls upon Congress.

    However, the constitution does not require a declaration of war in order for the government to involve itself in military actions.
     
  9. fromtheright

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    John,

    It sounds like we pretty much agree but I'm curious if you believe the Congressional power to declare war limits the President's military actions/options in any way?
     
  10. Johnv

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    I'm no expert, but a declaration of war and military action are two different things. So, in regards to strictly speaking of military action, no, it doesn't appear that the Congressional constituional privilege of declaring war limits the President's constitutional practical role as Commander-in-Chief of the armed forces.
     
  11. fromtheright

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    Ken, any particular basis for your interpretation of the declare war clause?
     
  12. KenH

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    Prior to the Korean conflict had the U.S. ever engaged in a full scale war without a Congressional declaration of war?
     
  13. fromtheright

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    I'd say the Civil War was a pretty full scale war. No declaration. To answer that it was not against a foreign nation only confirms my point, viz, that it was not intended as an authorization of war or commitment of military forces. The United States has committed military forces into hostilities abroad at least 125 times, according to Yoo, in the Constitution's 217 year history, including obviously some small-scale actions.

    That still doesn't provide any answer from early American history (pre-Constitution) or from the Framing period supporting your apparent view that the Founders intended it as an authorization of war and that the President cannot Constitutionally make war without it. Again, it was not even raised as a check in ratification debates (at least in Virginia, where the Constitution was hotly debated).
     
  14. OldRegular

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    The answer is yes.

    Roosevelt led us into WWII. It is true that there was a Declaration of War after Pearl Harbor but his determination to save the communist Soviet Union dominated his foreign policy and led to the War.

    Truman did in Korea.

    Kennedy/Johnson did in Viet Nam.

    Reagan did in Granada.

    Bush 41 did in Iraq.

    Bush 43 did in Afghanistan and Iraq.
     
  15. fromtheright

    fromtheright
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    Am also curious what some other strict constructionists like Joe Botwinick, Bunyon, poncho, and JGrubbs have to say on this subject.
     
  16. KenH

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    But we did not engage in hostilities until after we were attacked and the Congress had declared war.

    I am not including small scale actions in the need for Congress to declare war.
     
  17. JGrubbs

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    And there were actually six seperate declarations of war by Congress for World War II. This table gives the eleven separate times that the United States has formally declared war against foreign nations. The only country against which the United States has declared war more than once is Germany, against which the United States has declared war twice (though a case could be made for Hungary as a successor state to Austria-Hungary). Each time the declaration was requested by the president either in writing or in person before a joint session of Congress.

    Source: Formal declarations of war

    Some say that the War Powers Resolution of 1973 is what gives the President the authority from Congress to go to war without a formal declaration by Congress. I believe the War Powers Resolution of 1973 should be repealed, Congress should not have the right to pass resolutions or bills that are unconstitutional. They don't have the Constitutional right to delegate responsibilities given to them by the US Constitution to the President.
     
  18. JGrubbs

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    I wouldn't use President Lincoln as an example of following the US Constitution. He abused the Constitution in so many ways!
     
  19. Johnv

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    The Barbary States wars were not declarations of war by congress, and those took place starting, I believe, in 1801. So to argue that warfare without a declaration by congress is a new idea is plainly false.
     
  20. JGrubbs

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    President Jefferson sent a squadron of frigates to the Mediterranean to protect our ships but limited its mission to defense in the narrowest sense of the term. Attacked by a Tripolitan cruiser, one of the frigates subdued it, disarmed it, and, pursuant to instructions, released it. Jefferson in a message to Congress announced his actions as in compliance with constitutional limitations on his authority in the absence of a declaration of war. Hamilton espoused a different interpretation, contending that the Constitution vested in Congress the power to initiate war but that when another nation made war upon the United States we were already in a state of war and no declaration by Congress was needed. Congress thereafter enacted a statute authorizing the President to instruct the commanders of armed vessels of the United States to seize all vessels and goods of the Bey of Tripoli ''and also to cause to be done all such other acts of precaution or hostility as the state of war will justify . . .'' But no formal declaration of war was passed, Congress apparently accepting Hamilton's view.

    Source: FindLaw
     

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