The Declare War Clause. What does it actually permit and prohibit?
Law enforcement shouldn't be political.
While I am very aware that SCOTUS will never address this issue, and even punted the issue during the Civil War, I’d like to start a discussion about the specific contours of this clause.
The Declare War Clause grants Congress an exclusive power. That is beyond doubt. The Presidents cannot, on their own authority, declare war. But the founders at the time seemed to have thought that Congressional approval was needed for even lesser military conflicts that did not warrant an actual declaration. In the nation’s early conflicts such as with France in 1798, with the Barbary States and with Native American tribes, Congress’s approval was generally sought even though a formal authorization was not made.
So it seems also clear that a formal declaration aren’t strictly necessary if Congress doesn’t want to bother with declaring war against an extremely inferior power. But there does seem to be a general consensus that these actions need some level of Congressional approval.
Something else generally agreed upon is that more broad statutory authority can give the President authority to initiate military action. A key example of this is Bush’s post-9/11 military actions, where Congress granted him the authority to retaliate with force against any actors found to be behind the attacks or aiding them. Though, there is significant debates on exactly how broad these can be read, or be worded. Typical nondelegation stuff. Very relevant to the recent tariff case actually.
Its generally agreed that the President can use military authority to immediately defend the United States from a direct attack by adversaries. This one isn’t super controversial. The President kinda implicitly has the ability to do this, because waiting for Congress to meet before repelling attackers is sort of silly.
Lastly, it’s generally agreed that the President does not need Congressional approval to send troops on peacekeeping missions, nor do they need approval to send them to various bases all around the world.
Then we get the controversies. How do you think these situations would turn out, or should turn out, if a case was ever brought to SCOTUS to review.
Can the President engage in conflicts in pursuant to international treaties or obligations such as the UN Charter or NATO charter? This is what Truman claimed when we entered into Korea
Can the President engage in low-level military conflict without Congressional authority? This is what the US government has been claiming about its various bombing campaigns. More or less “throwing around a tomahawk missile or two doesn’t count”. If they can, where is the line?
Can the President unilaterally use offensive force (not merely defensive force) in the response to attacks on American citizens or forces overseas? How about treaty allies or business interests?
Can the President use force against non-state actors without Congressional authority? This is also something the US Government has argued to be the case in regard to terrorist groups.
Can the President act pre-emptively in any of these cases?
Law enforcement shouldn't be political.
While I am very aware that SCOTUS will never address this issue, and even punted the issue during the Civil War, I’d like to start a discussion about the specific contours of this clause.
The Declare War Clause grants Congress an exclusive power. That is beyond doubt. The Presidents cannot, on their own authority, declare war. But the founders at the time seemed to have thought that Congressional approval was needed for even lesser military conflicts that did not warrant an actual declaration. In the nation’s early conflicts such as with France in 1798, with the Barbary States and with Native American tribes, Congress’s approval was generally sought even though a formal authorization was not made.
So it seems also clear that a formal declaration aren’t strictly necessary if Congress doesn’t want to bother with declaring war against an extremely inferior power. But there does seem to be a general consensus that these actions need some level of Congressional approval.
Something else generally agreed upon is that more broad statutory authority can give the President authority to initiate military action. A key example of this is Bush’s post-9/11 military actions, where Congress granted him the authority to retaliate with force against any actors found to be behind the attacks or aiding them. Though, there is significant debates on exactly how broad these can be read, or be worded. Typical nondelegation stuff. Very relevant to the recent tariff case actually.
Its generally agreed that the President can use military authority to immediately defend the United States from a direct attack by adversaries. This one isn’t super controversial. The President kinda implicitly has the ability to do this, because waiting for Congress to meet before repelling attackers is sort of silly.
Lastly, it’s generally agreed that the President does not need Congressional approval to send troops on peacekeeping missions, nor do they need approval to send them to various bases all around the world.
Then we get the controversies. How do you think these situations would turn out, or should turn out, if a case was ever brought to SCOTUS to review.
Can the President engage in conflicts in pursuant to international treaties or obligations such as the UN Charter or NATO charter? This is what Truman claimed when we entered into Korea
Can the President engage in low-level military conflict without Congressional authority? This is what the US government has been claiming about its various bombing campaigns. More or less “throwing around a tomahawk missile or two doesn’t count”. If they can, where is the line?
Can the President unilaterally use offensive force (not merely defensive force) in the response to attacks on American citizens or forces overseas? How about treaty allies or business interests?
Can the President use force against non-state actors without Congressional authority? This is also something the US Government has argued to be the case in regard to terrorist groups.
Can the President act pre-emptively in any of these cases?
The Declare War Clause. What does it actually permit and prohibit?
Law enforcement shouldn't be political.
While I am very aware that SCOTUS will never address this issue, and even punted the issue during the Civil War, I’d like to start a discussion about the specific contours of this clause.
The Declare War Clause grants Congress an exclusive power. That is beyond doubt. The Presidents cannot, on their own authority, declare war. But the founders at the time seemed to have thought that Congressional approval was needed for even lesser military conflicts that did not warrant an actual declaration. In the nation’s early conflicts such as with France in 1798, with the Barbary States and with Native American tribes, Congress’s approval was generally sought even though a formal authorization was not made.
So it seems also clear that a formal declaration aren’t strictly necessary if Congress doesn’t want to bother with declaring war against an extremely inferior power. But there does seem to be a general consensus that these actions need some level of Congressional approval.
Something else generally agreed upon is that more broad statutory authority can give the President authority to initiate military action. A key example of this is Bush’s post-9/11 military actions, where Congress granted him the authority to retaliate with force against any actors found to be behind the attacks or aiding them. Though, there is significant debates on exactly how broad these can be read, or be worded. Typical nondelegation stuff. Very relevant to the recent tariff case actually.
Its generally agreed that the President can use military authority to immediately defend the United States from a direct attack by adversaries. This one isn’t super controversial. The President kinda implicitly has the ability to do this, because waiting for Congress to meet before repelling attackers is sort of silly.
Lastly, it’s generally agreed that the President does not need Congressional approval to send troops on peacekeeping missions, nor do they need approval to send them to various bases all around the world.
Then we get the controversies. How do you think these situations would turn out, or should turn out, if a case was ever brought to SCOTUS to review.
Can the President engage in conflicts in pursuant to international treaties or obligations such as the UN Charter or NATO charter? This is what Truman claimed when we entered into Korea
Can the President engage in low-level military conflict without Congressional authority? This is what the US government has been claiming about its various bombing campaigns. More or less “throwing around a tomahawk missile or two doesn’t count”. If they can, where is the line?
Can the President unilaterally use offensive force (not merely defensive force) in the response to attacks on American citizens or forces overseas? How about treaty allies or business interests?
Can the President use force against non-state actors without Congressional authority? This is also something the US Government has argued to be the case in regard to terrorist groups.
Can the President act pre-emptively in any of these cases?
