War Powers Clause
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Article I, Section 8, Clause 11 of the United States Constitution, sometimes referred to as the War Powers Clause, vests in the Congress the exclusive power to declare war, in the following wording:
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
Five wars have been declared in American history: the War of 1812, the Mexican-American War, the Spanish-American War, World War I and World War II. It should be noted that the declaration of the Mexican-American War occurred after America and Mexico had commenced hostilities -- with Congress simply recognizing the existence of a state of war. Thus some historians argue that there have really only been four true declarations. Still other historians argue that the legal doctrines and legislation passed during the operations against Pancho Villa constitute an additional declaration of war.
American presidents often have not sought formal declarations of war, instead maintaining that they have the constitutional authority, as commander in chief (Article Two, Section Two) to use the military for "police actions".
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. Its constitutionality has never settled, and presidents both Democratic and Republican have repeatedly either ignored or criticised it as an unconstitutional encroachment upon the President.
Since World War II, Congress has formally authorized all the major military engagements that the US has undertaken. (Vietnam, Lebanon, Panama, Persian Gulf War, Afghanistan, and Iraq.)
Some legal scholars maintain that all military action taken without a Congressional declaration of war (regardless of the War Powers Resolution) is unconstitutional; however, the Supreme Court has never ruled directly on the matter.
There is also much debate about the meaning of the word "declare". Some scholars suggest that to declare war does not necessarily mean to commence war. During the Philadelphia Convention, there was some discussion about the difference between the power to "make war" and the power to "declare war", and which of the two should be written into the Constitution. A declaration of war lets the citizens of a nation know that they are now at war with some other nation or entity. It also puts the belligerent nations and their citizens on notice. More importantly, this establishes that international law governs the conduct of the war. This protects citizens in all the warring nations involved insofar as if they are captured by the enemy, they will be treated as prisoners-of-war instead of mere criminals.
[edit] Supreme Court cases
- Youngstown Sheet & Tube Co. v. Sawyer (1952)
- Hamdan v. Rumsfeld (2006)
[edit] See also
[edit] References
- 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
- Yoo, John C., "War and the Constitutional Text" . University of Chicago Law Review, Vol. 69, No. 4, Fall 2002
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