How to Declare War

[This Commentary originally appeared in the November 29, 1990 issue of The Mendon-Honeoye Falls-Lima Sentinel.]

What the Constitution says: The Constitution of the United States of America clearly states only Congress can declare war on another nation. Our founding fathers correctly determined the impropriety of putting an entire nation at risk as a result of one person having too much authority. Though naming him Commander-in-Chief, they astutely forbade the President from declaring war.

Constitutional scholars call this juxtaposition the separation of powers. The separation of powers between the three major branches of government creates a very durable system of checks and balances. The creators of the constitution sought to insure that no tyranny – whether by a single individual or a group of individuals – ever ruled the new nation they had invented.

Jefferson, Madison, et al would not see the United States fall due to one man’s mistakes. They realized military actions demanded quick decision making. This fact demanded they designate an undisputed Commander-in-Chief. Having being elected by the people and for the people, the President represented the best and only choice for such a role.

Yet, they did not want an all powerful President. They feared having a President who would declare war too quickly and without regard for the citizenry. They also feared having a President who would wait too long before declaring war. They chose Congress, being the duly elected representative body of all the different parts of the nation, to act as a check on the Commander-in-Chief.

Ultimately, with a mortal stake in any war, the people must be the ones to decide whether or not to fight. The framers of the constitution knew this, and so wrote that only Congress could declare war.

What the Constitution Doesn’t Say: When is a war a war and not a police action? America fought in Korea and Vietnam without formally declaring war. Very few people would not admit these two events were actually wars. (Indeed, we refer to them as The Korean War and The Vietnam War.)

Now, how about Grenada or Panama? Wham! Bam! Over and done within a day or two. How many people refer to these two military actions as wars? Not many.

The authors of the constitution purposely constructed it in a vague fashion. They did this to prevent the document from stultifying an expanding nation. They did not want to handcuff our government with what might eventually become archaic language.

While they said the President has the job of leading our army during war and gave Congress the job of declaring war, they carefully avoided defining what they meant by war. Those who composed the constitution left it up to us to decide when war was really a war.

Constitutional scholars call this an example of constitutional interpretation. The interpretative qualities of the United States Constitution have led all scholars to call it “a living document.”

The problem comes about when different branches of the government come up with different interpretations. Towards the latter part of the Vietnam War, Congress began to have different ideas about the definition of war than the President had.

What the War Powers Act Does: Sometimes, a President needs to move troops around very quickly. For the safety of the country, the President cannot (and should not) wait for Congress to declare war. For example, when it became clear to the White House that Libya had been directly involved in various anti-American terrorist activities, Ronald Reagan correctly decided to send a rather harsh message. (He ordered a surprise bombing of Libya. Colonel Qaddafi has been relatively quiet ever since.)

Imagine how successful this surprise raid would have been if the President had to wait for a congressional debate before allowing the bombers to attack. Most scholars feel the constitution permits the President to act without a congressional declaration in cases like this.

Sometimes, a “quick” military action can become a drawn out affair. With a firm commitment on the part of our political leaders, an extended operation can turn into a malaise of indecision. The objectives of the battle become lost in bureaucratic infighting and, in the end, the enemy wins. Most scholars would agree this describes our Vietnam experience.

To avoid another Vietnam, Congress passed the War Powers Act in 1973 (despite President Nixon’s veto). The War Powers Act requires the President to obtain congressional approval 90 days after sending troops into any area where the threat of hostilities is “imminent.” Many members of Congress publicly demand President Bush convene a congressional session to obtain just such approval.

President Bush calls such a debate premature and inappropriate. One can interpret the War Power Act either way with regards to the timing of the need for approval. In a defensive posture, the longer we and Saddam take no action, the less likely our troops are in “imminent” danger of active engagement. On the other hand, by maintaining an offensive posture, the imminence of a shooting war grows larger.

There can certainly be no doubt, however, of the inappropriateness of public officials fomenting national sentiment in opposition to the signals President Bush and virtually the rest of the world are trying to send to Saddam Hussein. When Saddam sees this sign of American weakness – our country’s apparent inability to make any long term commitment – he easily justifies his continued holdout. If America is to take the lead in the Gulf Crisis, these public leaders must stop undermining the President’s effort.

Next Week #87: Fill Out The Old Mendon Cobblestone Firehouse Survey!!! (originally published on November 22, 1990)
Next Week #89: The New Pearl Harbor (originally published on December 6, 1990)

[What is this and why is here? See Interested in Discovering My Time Machine? for more details.]