Does a President have the Constitutional Authority to initiate a Military Conflict?

Sierra Times ^ | 3/17/03 | Robert Greenslade

[Free Fire Zone]

Does a President have the Constitutional Authority to initiate a Military Conflict as Commander in Chief?

Analysis By Robert Greenslade - Sierra Times.com

With a military conflict against Iraq apparently only days away, the power of the president, as commander in chief, continues to be debated by political pundits in the media. Several commentators claim the president does not need any congressional authorization to initiate military actions against another country because the president is the commander in chief of the military forces of the United States. This is a total misconception of the commander in chief powers. A president does not have the constitutional authority to act, in an offensive capacity, until Congress gives him control of military forces of the United States through a formal declaration of war.

A president can, however, act in a defensive capacity if another nation attacks the United States or its military, without consulting Congress, because such an attack would constitute a declaration of war against the United States. Thus, a president could assume the commander in chief powers to protect the United States and its military pending a congressional declaration of war against the offending country.

During the debates in the Federal [Constitutional] Convention of 1787, a draft of the proposed constitution contained a provision granting Congress the power "to make war." A separate proposal to vest this power in the president was debated and rejected. It was asserted that the president should not have the power to initiate war because he could not be trusted with such a power. In addition, a proposal to substitute the word "declare" for "make" was agreed to unanimously. Thus, the constitutional power to initiate or declare war was vested solely in the Congress.

Alexander Hamilton discussed the commander in chief powers of the president in Federalist Essay No. 69. He compared the powers of the president, under the proposed constitution, to that of the King of Great Britain:

The President is to be the commander-in-chief of the army and navy of the United States. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies,¾ all which, by the Constitution under consideration, would appertain to the legislature.

As stated by Hamilton, the power of the president, concerning the regular forces of the United States, was inferior to that of the king of Great Britain because he lacked the constitutional power to declare war. The president, in this regard, acts only in the capacity of a supreme admiral or general after a declaration of war by Congress.

Since a president acts merely as the highest-ranking admiral or general, he lacks the constitutional authority to determine the nation that war can be waged against. Only Congress can make that determination. This is the purpose of a formal declaration of war. It specifically designates the nation or nations that can be attacked. Once this is done, the president then receives the power to act offensively and prosecute the war to its conclusion.

The action taken by President Roosevelt and Congress the day after the Japanese attack on Pearl Harbor in 1941 demonstrates how this constitutional process is suppose to take place. On December 8, Roosevelt appeared before a Joint Session of Congress and requested that body formally declare war on Japan. The Congressional Declaration of War adopted pursuant to his request stated in part:

Whereas the Imperial Government of Japan has committed unprovoked acts of war against the Government and the people of the United States of America: Therefore be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the state of war between the United States and the Imperial Government of Japan which has thus been thrust upon the United States is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial Government of Japan; and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States.

Once war was formally declared, President Roosevelt, as stated in the Declaration, received the authority, from Congress, to take control of the military forces of the United States and prosecute the war to its conclusion.

When Germany declared war on the United States three days later, Roosevelt again appeared before a Joint Session of Congress. Congress responded by formally declaring war on Germany. This Declaration gave Roosevelt separate authorization and control over the military forces of the United States. Each Declaration was distinct from the other.

If the president, as commander in chief, had the constitutional authority to initiate war, as some now claim, then there would have been no need for President Roosevelt to have appeared before a Joint Session of Congress on two separate occasions in 1941. He could have simply by-passed Congress by invoking his authority as commander in chief. In addition, if a president has unlimited control over the military forces of the United States, then why did it take two separate declarations of war in 1941 to authorize and direct President Roosevelt to employ the military forces of the United States against Japan and Germany? If the office of the president had independent power over the military, through the commander in chief provision, then President Roosevelt could have authorized and directed himself to employ United States forces against these nations.

World War II was the last time Congress and the office of the president complied with the declaration of war requirement. Since the conclusion of that war, Congress has either stood by idly or aided and abetted presidential usurpations of power. Presidents have been allowed to unconstitutionally take control of the military forces of the United States and employ offensive force against sovereign nations without securing a declaration of war.

Following the 2001 air piracy acts, resulting in attacks on the World Trade Towers and the Pentagon, Congress passed a resolution of force granting the president the power to determine the nation or nations to be attacked. This amounts to an unconstitutional transfer of power from the legislative branch to the executive branch.

In addition, it totally violates the intent of the Founders. As discussed above, the war provisions were set-up specifically to prevent the office of the president from having the power "to make war." The recent resolution of force passed by Congress overturns this principle and grants the president the power to make war against any nation he sees fit.

During the past few years, federal politicians have constantly lectured the American people on the importance of the "rule of law." The Constitution, as far as federal powers are concerned, is the "rule of law." Whenever federal politicians violate the Constitution they are reduced to the status of lawbreakers. Yet these same politicians are attempting place this label on Iraq in order to justify an attack on that nation.

An offensive assault on Iraq would constitute an act of war by the United States. It appears, from the rhetoric emanating from Washington, that the United States intends to attack Iraq without a constitutional declaration of war. If the American people do not hold Congress and the president accountable for an attack on another nation without a formal declaration of war, then they are endorsing another usurpation of power by the federal government and the eventual overthrow of our constitutional system of government.

Note: In 1973, over a presidential veto, Congress passed a statute known as the War Powers Act. A provision of this Act purports to give a president extraordinary control over the military forces of the United States without a congressional declaration of war. It should be noted that Congress cannot grant itself or a president extraordinary constitutional powers by statute. Thus, it would take an amendment of the Constitution to lawfully change the war and commander in chief provisions of the Constitution.

Copyright 2003 The Sierra Times

[The Duke]

Peasants require a king.

[RS]

"Robert Greensdale" does not seem to have any qualifications listed anywhere - From reading this, I can see why.

[Eagle Eye]

It's too late to still discuss this topic, even as much as I did so weeks and months ago.

It is now time to close ranks, do what needs to be done, then sort it out later.

At this point, these discussions really make SOME Americans look foolish and weak. That must please SH et al. Remember, the world watches CNN and BBC, not Fox or FreeRepublic.

I guess I'm a little biased on this since I'm Zulu +3 hrs with the troops here and find that these discussions and the protests are counterproductive.

It's time to support the troops, not talk about who can do what and why. That time has passed and those who wanted an unambiguous Declaration of War didn't get it. It's time to suck it up and drive on.

[SoggyBottomBoy]

1) Congress passed a "use of force" resolution before the november elections(2002). This resolution gave the president all the congressional authority he needs to wage this war on Iraq. If you will notice in the constitution there is no prescribed form or language that a war declaration must be in to be "legal".

2) Iraq never lived up to the cease fire agreed to after the Gulf War, therefore a state of hostilities still exist between the U.S. and Iraq. And, of course, the president can contine to fight an on going conflict.

[KC Burke]

If the American people do not hold Congress and the president accountable for an attack on another nation without a formal declaration of war, then they are endorsing another usurpation of power by the federal government and the eventual overthrow of our constitutional system of government.

Conversely, the specific general lanquage that the writer points out puts the President under obligation to act in our defense and safety when the known fact demand it. Failure to act would be impeachable.

[MindBender26]

This guy is 100% right. NOT.

[RS]

"That the state of war between the United States and the Imperial Government of Japan which has thus been thrust upon the United States is hereby formally declared"

I wodner if "greensdale" reads his own stuff -

This clearly says that the state of war already exists, and that Congress is simply providing a "formal" declaration of war.
The war was started and the President had an obligation to win it, even if the Congress did nothing.

[Teacher317]

It's always wonderful when liberals discover that we actally do have a Constitution.

[Hodar]

I would venture a guess that the author is incapable of using google, and doing a simple search.

* Iraq 1991-99

* Bosnia 1995 (Republic of Srpska)

* Sudan 1998

* Afghanistan 1998

* Yugoslavia 1999
http://www.schoolblogs.com/dawn/2002/12/08

[Sans-Culotte]

This is the only time I've ever seen a liberal refer to the Federalist Papers.

[hobbes1]

The Iraq Liberation Act.

Congressional Resolution for the Use of Force in Iraq

Now tell the atuhor of this Propaganda to Shut the F*** up and go home.

Both of these legislative items, decided by CONGRESS are easily available and have been the subject of much news recently.

THEREFORE either the author is an idiot. OR he has evil intentions....

[hobbes1]

Only Congress can make that determination They already have. see above.

[Jim Noble]

My take on this is that the Commander-in-Chief of the armed forces can command them to do anything.

He cannot, however, declare war.

Declaring war means this: "...the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war; and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States."

"...all the resources of the country are hereby pledged"

This is what Lyndon Johnson did not have in Vietnam. His repeated attempts to claim the power to marshal "all the resources of the country" with an unwilling Congress and people led to disaster.

The founders were really smart. Bush can take the armed forces to Baghdad, all right.

But Congress should declare war.          

[TomB]

AUTHORIZATION FOR USE OF MILITARY FORCE AGAINST IRAQ RESOLUTION OF 2002

I can't imagine how it could be more clear.

[finnman69]

What prevents these dunderheads from reading this.....




House Joint Resolution Authorizing Use of Force Against Iraq

Following is the text of House Joint Resolution 114, "To authorize the use of United States Armed Forces against Iraq," approved in the House of Representatives October 10, by a vote of 296 to 133:

(begin text)

107th CONGRESS 2d Session H. J. RES. 114 To authorize the use of United States Armed Forces against Iraq. IN THE HOUSE OF REPRESENTATIVES October 2, 2002

JOINT RESOLUTION

To authorize the use of United States Armed Forces against Iraq.

Whereas in 1990 in response to Iraq's war of aggression against and illegal occupation of Kuwait, the United States forged a coalition of nations to liberate Kuwait and its people in order to defend the national security of the United States and enforce United Nations Security Council resolutions relating to Iraq;

Whereas after the liberation of Kuwait in 1991, Iraq entered into a United Nations sponsored cease-fire agreement pursuant to which Iraq unequivocally agreed, among other things, to eliminate its nuclear, biological, and chemical weapons programs and the means to deliver and develop them, and to end its support for international terrorism;

Whereas the efforts of international weapons inspectors, United States intelligence agencies, and Iraqi defectors led to the discovery that Iraq had large stockpiles of chemical weapons and a large scale biological weapons program, and that Iraq had an advanced nuclear weapons development program that was much closer to producing a nuclear weapon than intelligence reporting had previously indicated;

Whereas Iraq, in direct and flagrant violation of the cease-fire, attempted to thwart the efforts of weapons inspectors to identify and destroy Iraq's weapons of mass destruction stockpiles and development capabilities, which finally resulted in the withdrawal of inspectors from Iraq on October 31, 1998;

Whereas in Public Law 105-235 (August 14, 1998), Congress concluded that Iraq's continuing weapons of mass destruction programs threatened vital United States interests and international peace and security, declared Iraq to be in 'material and unacceptable breach of its international obligations' and urged the President 'to take appropriate action, in accordance with the Constitution and relevant laws of the United States, to bring Iraq into compliance with its international obligations';

Whereas Iraq both poses a continuing threat to the national security of the United States and international peace and security in the Persian Gulf region and remains in material and unacceptable breach of its international obligations by, among other things, continuing to possess and develop a significant chemical and biological weapons capability, actively seeking a nuclear weapons capability, and supporting and harboring terrorist organizations;

Whereas Iraq persists in violating resolution of the United Nations Security Council by continuing to engage in brutal repression of its civilian population thereby threatening international peace and security in the region, by refusing to release, repatriate, or account for non-Iraqi citizens wrongfully detained by Iraq, including an American serviceman, and by failing to return property wrongfully seized by Iraq from Kuwait;

Whereas the current Iraqi regime has demonstrated its capability and willingness to use weapons of mass destruction against other nations and its own people;

Whereas the current Iraqi regime has demonstrated its continuing hostility toward, and willingness to attack, the United States, including by attempting in 1993 to assassinate former President Bush and by firing on many thousands of occasions on United States and Coalition Armed Forces engaged in enforcing the resolutions of the United Nations Security Council;

Whereas members of al Qaida, an organization bearing responsibility for attacks on the United States, its citizens, and interests, including the attacks that occurred on September 11, 2001, are known to be in Iraq;

Whereas Iraq continues to aid and harbor other international terrorist organizations, including organizations that threaten the lives and safety of United States citizens;

Whereas the attacks on the United States of September 11, 2001, underscored the gravity of the threat posed by the acquisition of weapons of mass destruction by international terrorist organizations;

Whereas Iraq's demonstrated capability and willingness to use weapons of mass destruction, the risk that the current Iraqi regime will either employ those weapons to launch a surprise attack against the United States or its Armed Forces or provide them to international terrorists who would do so, and the extreme magnitude of harm that would result to the United States and its citizens from such an attack, combine to justify action by the United States to defend itself;

Whereas United Nations Security Council Resolution 678 (1990) authorizes the use of all necessary means to enforce United Nations Security Council Resolution 660 (1990) and subsequent relevant resolutions and to compel Iraq to cease certain activities that threaten international peace and security, including the development of weapons of mass destruction and refusal or obstruction of United Nations weapons inspections in violation of United Nations Security Council Resolution 687 (1991), repression of its civilian population in violation of United Nations Security Council Resolution 688 (1991), and threatening its neighbors or United Nations operations in Iraq in violation of United Nations Security Council Resolution 949 (1994);

Whereas in the Authorization for Use of Military Force Against Iraq Resolution (Public Law 102-1), Congress has authorized the President 'to use United States Armed Forces pursuant to United Nations Security Council Resolution 678 (1990) in order to achieve implementation of Security Council Resolution 660, 661, 662, 664, 665, 666, 667, 669, 670, 674, and 677';

Whereas in December 1991, Congress expressed its sense that it 'supports the use of all necessary means to achieve the goals of United Nations Security Council Resolution 687 as being consistent with the Authorization of Use of Military Force Against Iraq Resolution (Public Law 102-1),' that Iraq's repression of its civilian population violates United Nations Security Council Resolution 688 and 'constitutes a continuing threat to the peace, security, and stability of the Persian Gulf region,' and that Congress, 'supports the use of all necessary means to achieve the goals of United Nations Security Council Resolution 688';

Whereas the Iraq Liberation Act of 1998 (Public Law 105-338) expressed the sense of Congress that it should be the policy of the United States to support efforts to remove from power the current Iraqi regime and promote the emergence of a democratic government to replace that regime;

Whereas on September 12, 2002, President Bush committed the United States to 'work with the United Nations Security Council to meet our common challenge' posed by Iraq and to 'work for the necessary resolutions,' while also making clear that 'the Security Council resolutions will be enforced, and the just demands of peace and security will be met, or action will be unavoidable';

Whereas the United States is determined to prosecute the war on terrorism and Iraq's ongoing support for international terrorist groups combined with its development of weapons of mass destruction in direct violation of its obligations under the 1991 cease-fire and other United Nations Security Council resolutions make clear that it is in the national security interests of the United States and in furtherance of the war on terrorism that all relevant United Nations Security Council resolutions be enforced, including through the use of force if necessary;

Whereas Congress has taken steps to pursue vigorously the war on terrorism through the provision of authorities and funding requested by the President to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons or organizations;

Whereas the President and Congress are determined to continue to take all appropriate actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons or organizations;

Whereas the President has authority under the Constitution to take action in order to deter and prevent acts of international terrorism against the United States, as Congress recognized in the joint resolution on Authorization for Use of Military Force (Public Law 107-40); and

Whereas it is in the national security interests of the United States to restore international peace and security to the Persian Gulf region: Now, therefore, be it

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This joint resolution may be cited as the 'Authorization for Use of Military Force Against Iraq Resolution of 2002'.

SEC. 2. SUPPORT FOR UNITED STATES DIPLOMATIC EFFORTS.

The Congress of the United States supports the efforts by the President to --

(1) strictly enforce through the United Nations Security Council all relevant Security Council resolutions regarding Iraq and encourages him in those efforts; and

(2) obtain prompt and decisive action by the Security Council to ensure that Iraq abandons its strategy of delay, evasion and noncompliance and promptly and strictly complies with all relevant Security Council resolutions regarding Iraq.

SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) AUTHORIZATION- The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to --

(1) defend the national security of the United States against the continuing threat posed by Iraq; and

(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.

(b) PRESIDENTIAL DETERMINATION- In connection with the exercise of the authority granted in subsection (a) to use force the President shall, prior to such exercise or as soon thereafter as may be feasible, but no later than 48 hours after exercising such authority, make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination that --

(1) reliance by the United States on further diplomatic or other peaceful means alone either (A) will not adequately protect the national security of the United States against the continuing threat posed by Iraq or (B) is not likely to lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq; and

(2) acting pursuant to this joint resolution is consistent with the United States and other countries continuing to take the necessary actions against international terrorist and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001.

(c) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this joint resolution supersedes any requirement of the War Powers Resolution.

SEC. 4. REPORTS TO CONGRESS.

(a) REPORTS- The President shall, at least once every 60 days, submit to the Congress a report on matters relevant to this joint resolution, including actions taken pursuant to the exercise of authority granted in section 3 and the status of planning for efforts that are expected to be required after such actions are completed, including those actions described in section 7 of the Iraq Liberation Act of 1998 (Public Law 105-338).

(b) SINGLE CONSOLIDATED REPORT- To the extent that the submission of any report described in subsection (a) coincides with the submission of any other report on matters relevant to this joint resolution otherwise required to be submitted to Congress pursuant to the reporting requirements of the War Powers Resolution (Public Law 93-148), all such reports may be submitted as a single consolidated report to the Congress.

(c) RULE OF CONSTRUCTION- To the extent that the information required by section 3 of the Authorization for Use of Military Force Against Iraq Resolution (Public Law 102-1) is included in the report required by this section, such report shall be considered as meeting the requirements of section 3 of such resolution.

[TomB]

You beat me to it.

The only thing the liberals and paleocons can hang their hat on is to split hairs and say "use of force" is somehow different that "war".

Of course there isn't a difference, but that isn't stopping them.

[xzins]

Of course he does.

A war is a declaration of a specific, unified, national military objective against a foe.

A man charged with the security of the nation must have the flexibility to use force in the day-to-day securing of a nation against those who would attack it. He might later ask for authorization to conduct a war or a reprisal against that foe, but he must be able to use force against immediate threats.

[Cicero]

Does this mean we need to get into a time machine and undo every war we've fought since 1945?

[Nick Danger]

If you will notice in the constitution there is no prescribed form or language that a war declaration must be in to be "legal".

I agree. We have too many outhouse lawyers running around here claiming that Congress must pass something that includes the exact phrase "declare war" in order to pass Constitutional muster. The Constitution does not say that.

All of the powers enumerated in Article I Section 8 are phrased in general terms; the exact language to be used by some subsequent Congress is not specified for any of these powers.

If the Congress passes something that "hereby authorizes the President of the United States to blow the crap out of Saddam Hussein," which is pretty much what they did, then that is an exercise of their power to declare war. Nothing says that the item passed must include the phrase "declare war" in order to make this kind of an authorization.

This issue was just litigated in the last few weeks. The usual suspects from the Party of Weakness And Appeasement went to court arguing that the resolution passed by Congress unconstitutionally delegated to the President the authority to declare war. Their case was thrown out, and it was just thrown out again on appeal. The main reason was that the plaintiffs could not show that the Congress was in any dispute with the President over this; the Congress quite clearly intended to authorize the use of military force against Iraq. That's all they have to do. They don't have to say "war," or "shazam," or any other magic word.