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

[OldRegular]

Originally posted by KenH:
</font><blockquote>quote:</font><hr />Originally posted by OldRegular:
Roosevelt led us into WWII.

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. </font>[/QUOTE]Some might say that supplying Britian and the Soviet Union with weapons was engaging in hostilities. If you are in an altercation with someone and his friend hands him a weapon is the friend engaged in hostilities?

 

[Johnv]

To be fair, every time the US has scratched its backside since 1776, it's probably been considered an act of hostility to someone somewhere.

 

[poncho]

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

The president can do anything we the people allow him to do.

 

[fromtheright]

Nice dodge, poncho. You're not given to dodging questions, so I'll just remind you that the question is what the Constitution allows.

 

[JGrubbs]

FTR, what do you think about my post above from FindLaw?

 

[fromtheright]

Actually and honestly, JG, I was doing a little dodging, myself.

I would start, though, looking at the statement that

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.

My point is that that authority does exist short of a declaration.

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

I think this arguably, if not clearly, reinforces my point, that a declaration simply states and declares that a state of war exists and, thereby, changes our status under international law, as well as the status of Americans vis a vis the enemy.

I must also confess that the more I read on the subject in studying to answer your point, the less strong Yoo's argument appears, but as to the Framers' intent itself, the points I mentioned are still tough to overcome.

OK, I've given it a shot trying to answer the point you raised, and I must concede you raise an excellent argument. Want to give any of the seven points I mentioned a try?

 

[JGrubbs]

I will have to go back to your seven points, I will look at them this week end and try to get back, it looks like some of them will require some extra studying on my part.

 

[poncho]

Originally posted by fromtheright:
Nice dodge, poncho. You're not given to dodging questions, so I'll just remind you that the question is what the Constitution allows.

“War,” said James Madison, asking Congress for a declaration in 1812, “is a solemn question which the Constitution wisely confides in the legislative department of the government.”

No constitution can be accounted wise if it makes war easy. Therefore, the U.S. Constitution makes war formal. No matter how docile Congress may become, how imperial the modern presidency may seem, presidential war is unconstitutional. As the clouds of preemptive war gather over the Middle East, President Bush has already circumvented the clear, lofty language of the Constitution: “Congress shall have the power to declare war.”

How easily we forget that the doctrine of preemptive war -- a doctrine integral to the ideology of fascism in the 1930s -- was explicitly repudiated at Nuremberg. As a presiding Judge at the Nuremberg Trials between 1945 and 1949, U.S. Supreme Court Justice Jackson wrote: “War is utterly renounced and condemned as an instrument of policy.” The Nuremberg Trials were influenced, not only by the lofty ideals of the enlightenment, but by the sagacious principles of James Madison. In the U.S. Constitution, war does not fall under foreign policy; it falls under law.

Justice Jackson addressed the constitutional issue of undeclared war in 1952, when President Harry S. Truman directed the secretary of commerce to take over most of the nation’s steel mills to fulfill the needs of the Korean War. The Supreme Court ruled that a president, whatever emergencies he may declare, cannot take over private industry or private property without a formal declaration of war. Concurring Justice Robert Jackson wrote: “No penance would ever expiate the sin against free government of holding that a president can escape control of executive powers by law through assuming his military role ... . It is not a military prerogative, without support of law, to seize persons or property because they are important or even essential for the military and naval establishments.”

For the authors of the Constitution, the solemnity of war and respect for the opinions of mankind required open declaration. Even the war for independence was proclaimed in a Declaration of Independence.” In the constitutional sense,” as Justice William O. Douglas put it, “a foreign nation is not an enemy until and unless war has been declared against it.”

The framers of the Constitution did not believe in ex post facto consent; nor did they give Congress a petty power to hem, haw, whine and weasel. Blank-check presidential, discretionary wars are not part of the U.S. Constitution.

The framers of the Constitution deliberately outlawed presidential war. At the Constitutional Convention the framers were confronted with three options regarding war: war declared by the President, war declared by the Senate, and war declared by the entire Congress. Hamilton’s draft of the Constitution, handed to Madison in 1789, read: “The Senate shall exclusively possess the power of declaring war ... .” In the Federalist Papers he recounted the history of kingly power in making wars, and he praised those subjects who attempted to “abolish the exercise of so dangerous an authority.” Even to the anti-populist Federalists, war was a formal, solemn legislative matter.

The fear of standing armies, the fear of rulers who might abuse their power, shaped much of the Constitution. For centuries, rulers had squandered the wealth of nations in expeditions to foreign lands, hiding their own mistakes with the shroud of war. For centuries the tyrants of Greece, the Caesars of Rome, and the princes of Europe cheated their nations into war, using war itself to persuade the people that war was necessary. For centuries, war had been an instrument of vanity, ambition and empire. For centuries the rulers of “republics” used the cry of foreign policy to overturn domestic right, submitting life and liberty to the alteration of a map.

Reflecting on the history of ruined peoples, the authors of the Constitution wrote: “Congress shall have the power to declare war.”

SOURCE

 

[fromtheright]

poncho,

No constitution can be accounted wise if it makes war easy.

Agreed. One thing that Yoo does gloss over, though he does at least mention it, is that very concern expressed in the Constitutional Convention.

As the clouds of preemptive war gather over the Middle East, President Bush has already circumvented the clear, lofty language of the Constitution: “Congress shall have the power to declare war.”

The question, though, is whether declaring war is the same thing as making war, are they the same authority? And whether the President can make war without Congress's declaration of war.

In the U.S. Constitution, war does not fall under foreign policy; it falls under law.

Interesting that you mention its placement. One argument that Yoo makes, that I didn't list, is that the power to declare war is right alongside other international law considerations such as letters of marque and reprisal and the law of captures, supporting his argument.

Your discussion of the issue of Truman taking over the steel mills is interesting but it highlights Yoo's point, mentioned in one of my first posts here that,

[D]eclarations played a domestic legal role by informing citizens of an alteration in their legal rights and status.

For the authors of the Constitution, the solemnity of war and respect for the opinions of mankind required open declaration. Even the war for independence was proclaimed in a Declaration of Independence.” In the constitutional sense,” as Justice William O. Douglas put it, “a foreign nation is not an enemy until and unless war has been declared against it.”

This goes back to my point seven on the first page here, that

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."

It was not an authorization for war/military action, which was already ongoing.

Blank-check presidential, discretionary wars are not part of the U.S. Constitution.

This completely ignores my very point that there is nothing "blank check" in the President's war power. Congress has control over the funds and can turn off the money spigot for war any time it chooses. To argue that they can't do so and risk not supporting the troops is to confuse Constitutional power with political will.

 

[poncho]

This completely ignores my very point that there is nothing "blank check" in the President's war power. Congress has control over the funds and can turn off the money spigot for war any time it chooses.

Can congress both except contributions and gratuities from lobbists for the military industrial complex and other major corporations that always seem to profit best at times of war, and really be expected to just turn off the money spiget for war any time they choose?

What of the control the bankers clearly hold and have held over congress since well, 1792?? Don't these stand to profit from loans and credit to the MIC and other major corporations that always seem to profit best in times of war?

One would have to believe that congress was acting on the best interests of ordinary citizens to have such a view FTR.

Our foreign policy is no less of a threat to us. Our worldwide military presence and our obsession with remaking the entire Middle East frightens a lot of people both here and abroad. Our role as world policeman and nation builder places undue burdens on the American taxpayer. Our enormous overseas military expenditures – literally hundreds of billion of dollars – are a huge drain on the American economy.

All wars invite abuses of civil liberties at home, and the vague declaration of war against terrorism is worse than most in this regard. As our liberties here at home are diminished by the Patriot Act and national ID card legislation, we succumb to the temptation of all empires to neglect habeas corpus, employ torture tactics, and use secret imprisonment. These domestic and foreign policy trends reflect a morally bankrupt philosophy, devoid of any concern for liberty and the rule of law.

The American people are becoming more aware of the serious crisis this country faces. Their deep concern is reflected in the current mood in Congress. The recent debate over Iraq shows the parties are now looking for someone to blame for the mess we’re in. It’s a high stakes political game. The fact that a majority of both parties and their leadership endorsed the war, and accept the same approach toward Iran and Syria, does nothing to tone down the accusatory nature of the current blame game.

The argument in Washington is over tactics, quality of intelligence, war management, and diplomacy, except for the few who admit that tragic mistakes were made and now sincerely want to establish a new course for Iraq. Thank goodness for those who are willing to reassess and admit to these mistakes. Those of us who have opposed the war all along welcome them to the cause of peace.

If we hope to pursue a more sensible foreign policy, it is imperative that Congress face up to its explicit constitutional responsibility to declare war. It’s easy to condemn the management of a war one endorsed, while deferring the final decision about whether to deploy troops to the president. When Congress accepts and assumes its awesome responsibility to declare war, as directed by the Constitution, fewer wars will be fought.

Sadly, the acrimonious blame game is motivated by the leadership of both parties for the purpose of gaining, or retaining, political power. It doesn’t approach a true debate over the wisdom, or lack thereof, of foreign military interventionism and pre-emptive war

Ron Paul

 

[JGrubbs]

Originally posted by fromtheright:
The question, though, is whether declaring war is the same thing as making war, are they the same authority? And whether the President can make war without Congress's declaration of war.

I would argue as Hamilton did, that if another nation formally declares war on us, then the President has the authority to use the military to defend us from that nation without a formal declaration of war by Congress, because war was already declared by the attacking nation. This is why I support using the military to go after Ossama and those responsible for 9/11, but I am opposed to the war in Iraq, because they never attacked us, and there was not declaration of war by Congress before we invaded their country.

 

[fromtheright]

poncho, you're confusing Constitutional power with political will, which ultimately is an issue of the voters' vigilance and education.

JG, do you think that that the President has the authority to initiate war when confronted with what he believes is an imminent threat? What if Congress debates a declaration of war, votes it down, yet that threat remains or exists?

 

[JGrubbs]

I believe that if the President has absolute proof that there is an imminent threat of some nation preparing to attack us, then he should have no problem getting Congress to declare war against that nation. Iraq was NOT an imminent threat to the US! Spreading democracy around the world, and removing dictators is not a Constitutional responsibility of the President. Jefferson summed up the best foreign policy position perfectly in his 1801 inaugural address: "Peace, commerce, and honest friendship with all nations – entangling alliances with none."

I just believe it is not only unconstitutional, but very dangerous to allow one man to be the one who determains soley wether we are going to spend billions of dollars and thousands of lives to go to war against another nation, this is a decision I belive our founding fathers wanted to go through the same checks and balances that all other descisions in Washington have to go through.

 

[fromtheright]

JG,

I believe that if the President has absolute proof that there is an imminent threat of some nation preparing to attack us, then he should have no problem getting Congress to declare war against that nation. Iraq was NOT an imminent threat to the US!

It was just a theoretical question.

I just believe it is not only unconstitutional, but very dangerous to allow one man to be the one who determains soley wether we are going to spend billions of dollars and thousands of lives to go to war against another nation

Part of Yoo's point, though, is that the power of the purse ensures that Congress does provide a check on that power.

 

[JGrubbs]

Thanks for suggesting The Founders Constitution in the other thread, I found where Hamilton talks about declaring war in;

Document 11

Alexander Hamilton, The Examination, no. 1
17 Dec. 1801Papers 25:454--57

That instrument has only provided affirmatively, that, "The Congress shall have power to declare War;" the plain meaning of which is that, it is the peculiar and exclusive province of Congress, when the nation is at peace, to change that state into a state of war; whether from calculations of policy or from provocations or injuries received: in other words, it belongs to Congress only, to go to War. But when a foreign nation declares, or openly and avowedly makes war upon the United States, they are then by the very fact, already at war, and any declaration on the part of Congress is nugatory: it is at least unnecessary. This inference is clear in principle, and has the sanction of established practice. It is clear in principle, because it is self-evident, that a declaration by one nation against another, produce at once a complete state of war between both; and that no declaration on the other side can at all vary their relative situation: and in practice it is well known, that nothing is more common, than when war is declared by one party, to prosecute mutual hostilities, without a declaration by the other.

Source: The Founders Constitution

 

[JGrubbs]

Here is another exceprt from The Founders Constitution that helps explain why our founding fathers didn't want to give the President the power to declare war, they didn't want the President to be like the king of Great Britain:

The President, therefore, is to command the military forces of the United States, and this power I think a proper one; at the same time it will be found to be sufficiently guarded. A very material difference may be observed between this power, and the authority of the king of Great Britain under similar circumstances. The king of Great Britain is not only the commander-in-chief of the land and naval forces, but has power, in time of war, to raise fleets and armies. He has also authority to declare war. The President has not the power of declaring war by his own authority, nor that of raising fleets and armies. These powers are vested in other hands. The power of declaring war is expressly given to Congress, that is, to the two branches of the legislature--the Senate, composed of representatives of the state legislatures, the House of Representatives, deputed by the people at large. They have also expressly delegated to them the powers of raising and supporting armies, and of providing and maintaining a navy.

Source: The Founding Documents

 

[fromtheright]

JG,

Thanks for suggesting The Founders Constitution in the other thread, I found where Hamilton talks about declaring war

Here is another exceprt from The Founders Constitution

Doggone it, it looks like I've armed my already worhty opponent!

The first quote more directly supports your argument, IMO, especially

it is the peculiar and exclusive province of Congress, when the nation is at peace, to change that state into a state of war; whether from calculations of policy or from provocations or injuries received

I do still believe that Yoo makes some very strong arguments to support his position, but it's definitely an issue I need to study closer.

 

[poncho]

Originally posted by fromtheright:
poncho, you're confusing Constitutional power with political will, which ultimately is an issue of the voters' vigilance and education.

Who's educating the vigilant voters? Individualists or collectivists? If you are trying to make decisions based on the collectivist idea of the greater good for the greater number, how are you going to understand a document written by individualists for individualists?

 

[poncho]

Oops! Didn't mean to double post.

 

[fromtheright]

poncho,

If you are trying to make decisions based on the collectivist idea of the greater good for the greater number, how are you going to understand a document written by individualists for individualists?

OK, poncho, I gotta hear this: how is the argument Yoo is making regarding the interpretation of the Constitution as to war-making a collectivist argument, as opposed to an individualist one?

BTW, then, isn't "general welfare" somewhat of a collectivist notion, then?