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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 power to declare war, in the following wording:
A number of wars have been declared under the United States Constitution, although there is some controversy as to the exact number, as the Constitution does not specify the form of such a declaration.
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Five wars have been declared under the Constitution: the War of 1812, the Mexican-American War, the Spanish-American War, World War I, and World War II.
In his message to Congress on May 11, 1846, the President explained that Texas was about to become one of the United States of America. Mexico threatened to invade Texas. The President amassed troops in the area of Corpus Christi. Texas became a state. US troops moved into an area in which the new international boundary was disputed. Mexican troops moved into the same area. The two forces clashed. The President claimed "after reiterated menaces, Mexico has passed the boundary of the United States, has invaded our territory and shed American blood upon the American soil. She has proclaimed that hostilities have commenced and that the two nations are now at war."[1] Some in Congress wondered if this were so, including Abraham Lincoln. He wrote in a letter to his law partner:
Then-congress member Lincoln moved for a Resolution issuing the President interrogatories (questions) so the Congress could determine for itself the exact "spot" of the conflict and whether the Congress believed it to be inside the United States.[4]
Regardless, the Congress did, by roll-call vote, declare war. House Roll Call Vote, Senate Roll Call Vote, Published Declaration of War, 1, Published Declaration of War, 2
If it was true that the war was ongoing, because the President had to repel a sudden attack, this was contemplated by the framers of the Constitution, in Philadelphia, during August of the summer of 1787, when the wording of the proposed Constitution was being finalized, the draft read that Congress could "make war." This was changed to "declare war" specifically in order to allow the President to defend the country from sudden attacks. "Mr. Madison and Mr. Gerry moved to insert "declare," striking out "make" war; leaving to the Executive the power to repel sudden attacks."[5] That the President took decisive action to defend the country does not relieve the Congress of its Art. I obligation to vote on whether to declare and continue the 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". According to historian Thomas Woods, "Ever since the Korean War, Article II, Section 2 of the Constitution — which refers to the president as the 'Commander in Chief of the Army and Navy of the United States' — has been interpreted to mean that the president may act with an essentially free hand in foreign affairs, or at the very least that he may send men into battle without consulting Congress."[6] Some have argued this could pass as offensive actions, though historically police actions fell mostly under the purview of protecting embassies, U.S. citizens overseas, and shipping such as the Quasi War.
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 authorizations 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 him or her self - 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. This Separation of Powers effect of stalemate thus creates a "functional", if not unanimous, governmental opinion and outcome on the matter.
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.[7] 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.
