War Powers Clause
|This article possibly contains original research. (August 2013)|
United States of AmericaGreat Seal of the United States
|This article is part of a series on the|
|United States Constitution|
Preamble and Articles|
of the Constitution
|Amendments to the Constitution|
|This section does not cite any references or sources. (August 2013)|
The Korean War was the first modern example of the U.S. being taken to war without a formal declaration, and this has been repeated in every armed conflict since. Beginning with the Vietnam War, however, Congress has given other various forms of authorization to do so. Some debate continues as to the appropriateness of these, as well as the tendency of the Executive Branch to engage in the origination of such a push, its marketing, and even propagandizing or related activities to generate such support.
Thus in light of the speculation concerning the Gulf of Tonkin Incident and the possible abuse of the authorization that followed, in 1973 Congress passed the War Powers Resolution, which requires the President to obtain either a declaration of war or a resolution authorizing the use of force from Congress within 60 days of initiating hostilities with a full disclosure of facts in the process. Its constitutionality has never been settled, and some Presidents have criticized it as an unconstitutional encroachment upon the President. In 2007, University of Virginia professor Larry J. Sabato proposed a Constitutional amendment in his book A More Perfect Constitution that would settle the issue by spelling out the exact powers of each branch in the Constitution itself. One counter-argument is that the Constitution is a "living document" which has survived for over 200 years because not everything is "spelled out." In the area of the War Powers Clause, the flexibility provided by the requirement for a Congressional statute permitting war (a declaration of war) and Constitutional interpretation could be sufficient. The President could defend the country, but not—by himself—use the military offensively. This would not require a Constitutional amendment or a statute like the War Powers Resolution; it has been with us since 1787.
Some legal scholars maintain that offensive, non-police military actions, while a Quorum can still be convened (see Continuity of Government), taken without a formal Congressional declaration of war is unconstitutional since no amendment with two-thirds majority of states has changed the original intent to make the War Powers Resolution legally binding. However, the Supreme Court has never ruled directly on the matter and to date no counter-resolutions have come to a vote. In the absence of a determination by the US Supreme Court, the Separation of Powers produces a stalemate on this issue.
Constitutional convention debate
As to the Philadelphia Convention and the intent of the American founders, there was only one delegate who suggested giving the Executive the power to take offensive military action: Pierce Butler of South Carolina. He suggested the President should be able to, but in practice would have the character not to do so without mass support. Elbridge Gerry, a delegate from Massachusetts, summed up the majority viewpoint saying he "never expected to hear in a republic a motion to empower the Executive alone to declare war." George Mason, Thomas Jefferson, and others voiced similar sentiments.
Supreme Court cases
Other Court cases
- The Imperial Presidency
- Unitary executive theory
- War Powers Resolution (War Powers Act of 1973)
- "Congressional Power to Declare War". The people's Guide to the United States Constitution. The people's Guide to the United States Constitution. Retrieved 28 August 2013.
- WETA last visited 1/22/2011
- Abraham Lincoln: a Documentary Portrait Through His Speeches and Writings. Don E. Fehrenbacher, editor., Stanford University Press, Stanford. CA (1996)
- Lincoln on Democracy, Mario M. Cuomo and Harold Holzer (Fordham University Press, 2004) pp. 36–37.
- http://memory.loc.gov/cgi-bin/ampage?collId=mal&fileName=mal1/000/0007000/malpage.db&recNum=0 last visited 1/21/2011
- 2 Farrand Records 317
- Woods, Thomas (2005-07-07) Presidential War Powers, LewRockwell.com
- "The Constitution & War: Congress Declares & President Wages". PonderPost. Retrieved 1 September 2013.
- Fisher, Louis (April 10, 2008). "“War Powers for the 21st Century: The Constitutional Perspective”- Statement presented in appearance before the House Committee on Foreign Affairs" (PDF). Library of Congress. Retrieved 2013-08-27.
- Max Rerrand, The Records of the Federal Convention of 1787 (rev. ed. 1937) at 318-219
- Fisher, Louis (2004) Presidential War Power, 2d Rev. Edition. University Press of Kansas
- Hendrickson, Ryan C. The Clinton Wars: Congress, the Constitution and War Powers. Vanderbilt University Press, 2002
- Lawson, Gary, "Delegation and Original Meaning" (October 2, 2001). Virginia Law Review, Vol. 88, April 2002
- Madison, James. Federalist No. 45, The Federalist Papers
- Woods, Thomas. Presidential War Powers, LewRockwell.com
- Yoo, John C., "War and the Constitutional Text" . University of Chicago Law Review, Vol. 69, No. 4, Fall 2002
- 2 Records of the Federal Convention of 1787, at 318-19 (Max Farrand ed. 1937).