Posted on 06/14/2002 10:22:22 AM PDT by SunStar
Really? What exactly does it say about how the country is to declare war? Does the constitution say that Congress has to use the words "declare," "war," "tunafish," or anything else in particular?
I remember many attacks. On December 12, 1937, Japanese government aircraft sank the USS Panay in the Yangtze River, killing American sailors in the process. On October 31, 1941, the USS Reuben James was sunk by a German submarine, killing 115 Americans.
Care to tell us when the United States declared war against Japan and Germany? Was it December 12, 1937, and October 31, 1941, respectively? Or was it December 8 and December 11, 1941 – when Congress issued resolutions:
”Declaring that a state of war exists between the Imperial Government of Japan and the Government and the people of the United States...”
...and...
“Declaring that a state of war exists between the Government of Germany and the government and the people of the United States...”
Which is it – December 1937, or December 1941? Hmm?
FWIW, it seems to me that our current batch of ‘Congress-persons’ and ‘Senate-persons’ appear to be interested primarily in avoiding their constitutional responsibilities. Such responsibilities tend to be, after all, the subjects of controversy. Russia could nuke 'The City of Brotherly Love' on Christmas Day, while the Pope was visiting, and our federal representatives would still let the President carry the ball - just to avoid any chance that a real ‘declaration of war’ might offend their constituents and impair their chances for re-election...
;>)
Both are Constitutional- but a 'Declared war' gives the President much greater leeway.
Justice Story:
"§ 1169. The power, to declare war may be exercised by congress, not only by authorizing general hostilities, in which case the general laws of war apply to our situation; or by partial hostilities, in which case the laws of war, so far as they actually apply to our situation, are to be observed. 12 The former course was resorted to in our war with Great Britain in 1812, in which congress enacted, "that war be, and hereby is declared to exist, between the United Kingdom of Great Britain and Ireland and the dependencies thereof, and the United States of America and their territories." 13 The latter course was pursued in the qualified war of 1798 with France, which was-regulated by divers acts of congress, and of course was confined to the limits prescribed by those acts. 14 "
It might be interesting if you would explain why you consider your's is superior.
The joint Resolution..... only gives the President authority to use force against those nations, organizations, or persons he determines planned, authorized, commited or aided the terrorist attacks that occured on Sept, 11, 2001, or harbored such organizations or persons..
It referes to the War Powers Resolution and it specificaly points out the War Powers Resolution Requirment (1)SPECIFIC Statutory Authorization, consistant with section 8 (a)(1) of the War powers Resolution, and that is not a declaration of war as you can see from the War Powers Resolution below
Also in the War Powers Resolution they make the distinction between DECLARATION OF WAR and SPECIFIC STATUTORY AUTHORIZATION such as the Joint resolution for use of force you are referring to in Section 6(c)
Notwithstanding subsection (b), at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.
As it stands now Congress can take back its authorization anytime it wants to and end the authorized use of force.
>>>>>>>>>>>>>>>>>>>>
Public Law 93-148
93rd Congress, H. J. Res. 542
November 7, 1973
Joint Resolution Concerning the war powers of Congress and the President.
Resolved by the Senate and the House of Representatives of the United States of America in Congress assembled. SHORT TITLE
SECTION 1. This joint resolution may be cited as the "War Powers Resolution". PURPOSE AND POLICY
SEC. 2. (a) It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicate by the circumstances, and to the continued use of such forces in hostilities or in such situations.
(b) Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.
(c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to
(1) a declaration of war,
(2) specific statutory authorization,
or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces. CONSULTATION
SEC. 3. The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.
REPORTING
SEC. 4. (a) In the absence of a declaration of war, in any case in which United States Armed Forces are introduced--
(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;
(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or
(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation; the president shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth--
(A) the circumstances necessitating the introduction of United States Armed Forces;
(B) the constitutional and legislative authority under which such introduction took place; and
(C) the estimated scope and duration of the hostilities or involvement.
(b) The President shall provide such other information as the Congress may request in the fulfillment of its constitutional responsibilities with respect to committing the Nation to war and to the use of United States Armed Forces abroad.
(c) Whenever United States Armed Forces are introduced into hostilities or into any situation described in subsection (a) of this section, the President shall, so long as such armed forces continue to be engaged in such hostilities or situation, report to the Congress periodically on the status of such hostilities or situation as well as on the scope and duration of such hostilities or situation, but in no event shall he report to the Congress less often than once every six months.
CONGRESSIONAL ACTION
SEC. 5. (a) Each report submitted pursuant to section 4(a)(1) shall be transmitted to the Speaker of the House of Representatives and to the President pro tempore of the Senate on the same calendar day. Each report so transmitted shall be referred to the Committee on Foreign Affairs of the House of Representatives and to the Committee on Foreign Relations of the Senate for appropriate action. If, when the report is transmitted, the Congress has adjourned sine die or has adjourned for any period in excess of three calendar days, the Speaker of the House of Representatives and the President pro tempore of the Senate, if they deem it advisable (or if petitioned by at least 30 percent of the membership of their respective Houses) shall jointly request the President to convene Congress in order that it may consider the report and take appropriate action pursuant to this section.
(b) Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of Untied States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States.
Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.
(c) Notwithstanding subsection (b), at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.
CONGRESSIONAL PRIORITY PROCEDURES FOR JOINT RESOLUTION OR BILL
SEC. 6. (a) Any joint resolution or bill introduced pursuant to section 5(b) at least thirty calendar days before the expiration of the sixty-day period specified in such section shall be referred to the Committee on Foreign Affairs of the House of Representatives or the Committee on Foreign Relations of the Senate, as the case may be, and such committee shall report one such joint resolution or bill, together with its recommendations, not later than twenty-four calendar days before the expiration of the sixty-day period specified in such section, unless such House shall otherwise determine by the yeas and nays.
(b) Any joint resolution or bill so reported shall become the pending business of the House in question (in the case of the Senate the time for debate shall be equally divided between the proponents and the opponents), and shall be voted on within three calendar days thereafter, unless such House shall otherwise determine by yeas and nays.
(c) Such a joint resolution or bill passed by one House shall be referred to the committee of the other House named in subsection (a) and shall be reported out not later than fourteen calendar days before the expiration of the sixty-day period specified in section 5(b). The joint resolution or bill so reported shall become the pending business of the House in question and shall be voted on within three calendar days after it has been reported, unless such House shall otherwise determine by yeas and nays. (d) In the case of any disagreement between the two Houses of Congress with respect to a joint resolution or bill passed by both Houses, conferees shall be promptly appointed and the committee of conference shall make and file a report with respect to such resolution or bill not later than four calendar days before the expiration of the sixty-day period specified in section 5(b). In the event the conferees are unable to agree within 48 hours, they shall report back to their respective Houses in disagreement. Notwithstanding any rule in either House concerning the printing of conference reports in the Record or concerning any delay in the consideration of such reports, such report shall be acted on by both Houses not later than the expiration of such sixty-day period.
CONGRESSIONAL PRIORITY PROCEDURES FOR CONCURRENT RESOLUTION
SEC. 7. (a) Any concurrent resolution introduced pursuant to section 5(b) at least thirty calendar days before the expiration of the sixty-day period specified in such section shall be referred to the Committee on Foreign Affairs of the House of Representatives or the Committee on Foreign Relations of the Senate, as the case may be, and one such concurrent resolution shall be reported out by such committee together with its recommendations within fifteen calendar days, unless such House shall otherwise determine by the yeas and nays.
(b) Any concurrent resolution so reported shall become the pending business of the House in question (in the case of the Senate the time for debate shall be equally divided between the proponents and the opponents), and shall be voted on within three calendar days thereafter, unless such House shall otherwise determine by yeas and nays.
(c) Such a concurrent resolution passed by one House shall be referred to the committee of the other House named in subsection (a) and shall be reported out by such committee together with its recommendations within fifteen calendar days and shall thereupon become the pending business of such House and shall be voted on within three calendar days after it has been reported, unless such House shall otherwise determine by yeas and nays.
(d) In the case of any disagreement between the two Houses of Congress with respect to a concurrent resolution passed by both Houses, conferees shall be promptly appointed and the committee of conference shall make and file a report with respect to such concurrent resolution within six calendar days after the legislation is referred to the committee of conference. Notwithstanding any rule in either House concerning the printing of conference reports in the Record or concerning any delay in the consideration of such reports, such report shall be acted on by both Houses not later than six calendar days after the conference report is filed. In the event the conferees are unable to agree within 48 hours, they shall report back to their respective Houses in disagreement.
INTERPRETATION OF JOINT RESOLUTION
SEC. 8. (a) Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred--
(1) from any provision of law (whether or not in effect before the date of the enactment of this joint resolution), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution; or
(2) from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution.
(b) Nothing in this joint resolution shall be construed to require any further specific statutory authorization to permit members of United States Armed Forces to participate jointly with members of the armed forces of one or more foreign countries in the headquarters operations of high-level military commands which were established prior to the date of enactment of this joint resolution and pursuant to the United Nations Charter or any treaty ratified by the United States prior to such date.
(c) For purposes of this joint resolution, the term "introduction of United States Armed Forces" includes the assignment of member of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities. (d) Nothing in this joint resolution--
(1) is intended to alter the constitutional authority of the Congress or of the President, or the provision of existing treaties; or
(2) shall be construed as granting any authority to the President with respect to the introduction of United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances which authority he would not have had in the absence of this joint resolution.
Founders Adams and Jefferson both waged wars without 'Declarations of War'.
You have a better understanding of what the Founders wanted than the Founders?
For the same reason that my knowledge of the Second Amendment is superior to many who have claimed that it is a "collective right". The Constitution is a document whose primary purpose is to limit the power of government. If no limitations were needed, then why have it. If limitations are needed, then why ignore the limitations.
I wish you felt the same- then you would be a fellow Constitutionalist.
There were times, such as the Alien and Sedition Act, when a case can be made that the Founders ( or some of them) erred.
As I said, if you wish to make a case that Jefferson and Adams erred go ahead- but your bald opinion vs their acts, supported by the Congress at the time, means less than nothing.
The Constitution means, and will always mean, what the Founders thought it did.
Crime and war are two different things. War may be fought because a government refuses to recognize the valid claims of the United States to hold people accountable for crimes. People who cause us to go to war may be held accountable for "war crimes" if they fall into our hands as a result of waging war.
Our government has the resources and the sophistication to be able to manage this distinction. Failure to manage it properly has the potential to destroy us.
The political decision to support a corrupt South Vietnamese government caused the death of many tens of thousands of Americans. I don't wish to see the repeat of such a mess. And yet a lack of clarity with regard to who is the enemy and what is a crime could lead to very serious problems "ending" the war.
If someone could ping all the libertarions...
Fine. Tell me whether the "celebrations" that you just described are an act of war or a permitted activity by a "neutral".
If it is an act of war, then it must be justified to use military force to stop it. If it is not an act of war, then we better learn to distinguish between "hate" and "crime". They are not the same. "Hate" is a thought. "Celebration" is a form of expressing joy. Thinking and expressing oneself are not crimes.
The Founders were not unanimous in their thinking. The words describe specific ideas which are to be interpreted for their meaning by taking into account the thinking of the Founders. I don't think that is the same thing. The fact that Jefferson, Adams, or any other President may have violated the Constitution wouldn't change what our Founders accomplished.
I haven't looked up a complete source of the War Powers Act but the snippets offered by others indicate that the law makes a clear differentiation:
Notwithstanding subsection (b), at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.
This appears to indicate that a "declaration of war" is not the same as a "specific statutory authorization".
These are the word chosen by Congress to exercise its powers under the Constitution.
Of course not, yet obviously (since it is specifically mentioned) the congress that wrote this believed "specific statutory authorization" is a Constitutional means of conducting war.
As Adams and Jefferson believed.
William Tell said: "The Congress is obligated to declare war if they believe that the President is justified in carrying out a war against an enemy. That is their duty. "
I hope you see that this just ain't so, and I suggest that you would do better to believe because Jefferson and Adams- and their congresses- did, than because some later congress did!
Later congresses have said some very iffy things about the constitution!
And I believe that it is unConstitutional for them to do so. There is no power in the Constitution for them to engage in war without declaring it. I previously pointed out the line from the Declaration of Independence which I believe is relevant:
"...a decent respect to the opinions of mankind requires that they should declare the causes which impel them ..."
Great Britain was engaging in many wars and managing an empire at the time of our Revolution. Many of the objections raised by our Founders to the behavior of King George centered around the fact that the need to conduct war was used as a pretext for violating human rights.
Soldiers were quartered in homes, people were stolen off the streets by press gangs and forced to do duty at sea, ruinous taxes were passed to cover the cost of distant wars. Paul Revere did not ride through the night shouting "The British are coming". He shouted "The Regulars are coming", referring to the Regular Army.
The provision in the Constitution giving Congress the power to declare war was to prevent an imperial president from doing so himself and creating just the pseudo-war situation in which we now find ourselves. If Congress has not declared war but has just passed a joint resolution instead, then there is no war. There is just military action by a President outside the controls dictated by the Constitution.
Since you adressed me specifically, I will answer "I don't know".
I believe that the President has the power to preserve, protect, and defend the Constitution of the United States. In that role, he may use the military forces available to him to defend if attacked. This power, in fact, belongs to everyone in the military, at least as far as I know. If fired upon, you may fire back.
The President is outside his limitations if he engages in a war past the time when Congress could declare it. That is their duty, not his.
When Congress declares the State of War over and the Joint Resolution is officially rescinded, I'd say that be the official end of the war.
OK, let's get this straight. You actually expect Congress to issue a "resolution" preventing the POTUS to defend us against terrorism?
Statism makes for stupid patriots.
What is so hard about "declaring war?" Of course, if you want a perpetual state of undefined war (like the one that exists in Orwell's 1984, then you cheerlead crap like this.
Tell me, do you like being in the Inner Party?
"Journal of the House of Representatives of the United States
December 8, 1801
TH. JEFFERSON.
... Unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defence, the vessel, being disabled from committing further hostilities, was liberated, with its crew. The Legislature will doubtless consider whether, by authorizing measures of offence also, they will place our force on an equal footing with that of its adversaries."
He got that authority from congress, and fought a Constitutional war against the pirates.
The wording in the Joint Resolution is "vague" in that it did not clearly state that Congress was "declaring war" when it could so easily have done so. None of the arguments I have seen on this thread (e.g., insurance clauses, identification of an enemy nation, etc.) are persuasive justifications for Congress' failure to "declare war".
But as I stated in my previous post, the issue isn't quite as clear-cut as I once thought it was. The Constitution does not prescribe the exact format of a Declaration of War (nor does it require a 2/3 vote to declare war as FreeTally argued). Different wordings in different resolutions have been employed in the past to declare war, so one can at least plausibly argue (whether or not the argument is ultimately validated) that this Joint Resolution Authorizing the Use of Force Against Terrorists fulfills the essence of the Constitutional requirement. But the counter-argument is at least as plausible.
Because Congress failed to clarify the matter, we are not going to be able to avoid these neverending disputes about whether our military actions were properly authorized. The President could also have asked Congress for a Declaration of War, but that is only advisory; the Constitution places the responsibility solely on Congress. And therefore I place the blame on Congress for another screw-up.
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