Declaration of war by the United States
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A declaration of war is a formal declaration issued by a national government indicating that a state of war exists between that nation, and one or more others. For the United States, Article One, Section Eight of the Constitution says "Congress shall have power to ... declare War;" however, that passage provides no specific format for what form legislation text must have to be considered a "Declaration of War" nor does the Constitution itself use this term. Many have postulated "Declaration(s) of War" must contain that phrase as or within the title. Many oppose that reasoning. The postulate has not been tested in court; however, this article will use the term "formal Declaration of War" to mean Congressional legislation that uses the phrase "Declaration of War" in the title.
Despite the constitutional requirement that Congress declare war, in practice, formal Declarations of War have occurred only upon prior request by the President. And contrary to the popular opinion that the framers of the Constitution intended that the President cannot engage in war without an act of Congress, in fact the framers chose the final wording with the intent of "leaving to the Executive the power to repel sudden attacks" without the explicit approval of Congress.[1] However, debate continues as to the legal extent of the President's authority in this regard.
After World War II, Congress voluntarily limited its use of the power to declare war to issuing authorizations of force.[citation needed] The War Powers Resolution of 1973 (Pub.L. 93-148) limits the power of the President to wage war without the approval of the Congress. The United States of America has formally declared war against foreign nations five separate times.
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[edit] Formal declarations of war
The table below gives the five separate wars in which the United States has formally declared war against foreign nations. The only country against which the United States has declared war more than once is Germany, against which the United States has declared war twice (though a case could be made for Hungary as a successor state to Austria-Hungary).
In World War II, the Japanese had attacked Pearl Harbor on the previous day, December 7, 1941. On December 11, Hitler and Mussolini declared war on America and the U.S. Congress responded in kind.[2][3]
| War or conflict | Opponent(s) | Initial authorization | Votes | President | Conclusion | |
|---|---|---|---|---|---|---|
| Senate | House | |||||
| War of 1812 | British Empire | June 18, 1812 | 19-13 | 79-49 | Madison | Treaty of Ghent (December 24, 1814) |
| Mexican-American War | Mexico | May 11, 1846 | 40-2 | 174-14 | Polk | Treaty of Guadalupe Hidalgo (February 2, 1848) |
| Spanish-American War | Spain | April 24, 1898 | 42-35 | 310-6 | McKinley | Treaty of Paris (December 10, 1898) |
| World War I | Germany | April 6, 1917 | 82-6 | 373-50 | Wilson | Treaty of Berlin (August 25, 1921) |
| Austria-Hungary | December 7, 1917 | 74-0 | 365-1 | Treaty of Trianon (in part) | ||
| World War II | Japan | December 8, 1941 | 82-0 | 388-1 | F. Roosevelt, Truman | Treaty of San Francisco (September 8, 1951) |
| Germany | December 11, 1941 | 88-0 | 393-0 | Treaty on the Final Settlement with Respect to Germany (September 12, 1990), Treaty of Vienna with Austria (May 15, 1955) | ||
| Italy | 90-0 | 399-0 | Paris Peace Treaty (February 10, 1947) | |||
| Bulgaria | June 5, 1942 | 73-0 | 357-0 | |||
| Hungary | 360-0 | |||||
| Romania | 361-0 | |||||
[edit] Military engagements authorized by Congress
Many times, the United States has engaged in extended military engagements that, while not formally declared wars, were explicitly authorized by Congress, short of a formal declaration of war.
[edit] United Nations resolutions
The Korean War was not a war authorized by the U.S. Congress. President Harry S. Truman cited authority under United Nations resolutions. Major US Military involvement began with Task Force Smith on July 5, 1950. A cease fire agreement was signed on July 27, 1953; however no formal treaty has been signed to this date.
[edit] Other undeclared wars
On at least 125 occasions, the President has acted without prior express military authorization from Congress.[4] These include instances in which the United States fought in Korea in 1950, the Philippine-American War from 1898-1903, and in Nicaragua in 1927.
The United States' longest war was fought between approximately 1840 and 1886 against the Apache Nation. During that entire 46-year period, there were never more than 90 days of "peace."
At least 28 conflicts and campaigns comprise the Indian Wars. These conflicts began with Europeans immigrating to North America long before the establishment of the United States of America. For the purpose of this discussion, the Indian Wars are defined as conflicts with the United States of America. They begin as one front in the American Revolutionary War in 1775 and are generally agreed upon as concluding with the surrender of the Apache chief Geronimo in 1886.
The American Civil War was not a true war in the sense that the Union Government held the position that secession from the Union was illegal and military force was used to restore the union by defeating in battle the military forces of the illegally rebelling states. No Southern ambassador or diplomat was accorded any status by the Union so an armistice or peace treaty was never an option because that would legitimize the Confederacy as an actual Nation. The legal right for armed force lay with the Constitution of the United States, which the Union interpreted as unbreakable. The actions of the Southern states were therefore illegal (according to the Union) because they were attempting to drop the Union as their form of Government, which is considered rebellion or insurrection.
However, everything from the legality to the causal factors of the Civil War remain debatable. The Constitution of the United States makes no specification or enumeration about either Nullification or Secession, but simply states in ARITCLE IV SECTION III that "...No new state shall be formed or erected within the jurisdiction of any other state; nor any state formed by the junction of two or more states, or parts of states without the consent of the legislatures of the states concerned, as well as of the U.S. in Congress assembled." Furthermore; ARTICLE VI Paragraph 1 states that: "All debts contracted, and engagements entered into, before the adoption of this constitution, shall be as valid against the United States, as under the Confederation." When the several states ratified the constitution, and entered into the Union, they entered into that engagement under the authority given them by the Articles of Confederation, the original binding legal document of the United States, which was law from 1777 to 1789, when the Constitution was ratified. The articles of confederation described that arrangement as "perpetual" while the Constitution makes no such specification, and ARTICLES (OR AMENDMENTS) IX AND X of the Constitution clearly protect the rights not specifically enumerated by the constitution, and reserve them to the states, or the people, this was taken to mean that secession was one of those rights, protected but not enumerated, since the Articles of Confederation granted permission for states to enter into a new confederacy, so long as they made clear the reasons for doing so, the length of time which it was to be entered into, and so long as the U.S. Congress approved, and since the Confederacy Is defined as "perpetual" and the Union is not, the southern states were actually reverting to their original government, the Confederacy of the United States of America. The actual authority Lincoln cited for the world's first "police action" was that the southern states had erected a new state, by conjoining several, without the consent of the U.S. Congress. It is the only context that he could apply to use military force without recognizing the confederacy as a new nation and declaring War; As it would have been both unconstitutional and illegal, even under the A.O.C. for the President to declare any part of the Union to be a separate nation, and declaring war on the Confederation without making it a separate nation would be the same as The U.S. declaring war on herself.
[edit] The War Powers Resolution
In 1973, following the withdrawal of most American troops from the Vietnam War, a debate emerged about the extent of presidential power in deploying troops without a declaration of war. A compromise in the debate was reached with the War Powers Resolution. This act clearly defined how many soldiers could be deployed by the President of the United States and for how long. It also required formal reports by the President to Congress regarding the status of such deployments, and limited the total amount of time that American forces could be employed without a formal declaration of war.
Although the constitutionality of the act has never been tested, it is usually followed, most notably during the Grenada Conflict, the Panamanian Conflict, the Somalia Conflict, the Gulf War, and the Iraq War. The only exception was President Clinton's use of U.S. troops in the 78-day NATO air campaign against Serbia during the Kosovo War.[citation needed] In all other cases, the President asserted the constitutional authority to commit troops without the necessity of Congressional approval, but in each case the President received Congressional authorization that satisfied the provisions of the War Powers Act.
[edit] Controversy regarding U.S. declarations of war
Those who oppose waging war without declaration point to Article I of the Constitution, which reads The Congress shall have the power to declare war., as well as the Tenth Amendment which limits Congress to those powers specifically enumerated in the Constitution.
In the case of smaller conflicts not requiring large commitments of manpower and money, some people may believe that precedents have already been set for acting without the need for declarations of war.[citation needed] In the case of major conflicts, however, debate is centered around the aforesaid words of the United States Constitution.
Those who believe that formal declarations of war are not necessary, argue that since the Constitution expressly prohibits the states from engaging in war without consent of Congress unless actually invaded or in imminent danger, that if a similar prohibition had been intended for the President, then such words would have also been written to effect it.[citation needed] They also point to the military connotations of the phrases engaging in war (used in the aforesaid prohibition) and levying war (used in the definition of treason) as opposed to the diplomatic connotations of the phrase declare war. Further historical arguments point to the decisions to not issue a formal declaration of war preceding either the Civil War or the Revolutionary War, the latter decision being made by a Continental Congress comprising a number of those who went on to write the Constitution. Moreover, the term "Declaration of War" is not, in fact, mentioned by the US Constitution. Instead the Constitution says "Congress shall have the power to ... declare War, ..." without defining the form such declarations will take. Therefore, many have argued congressionally passed authorizations to use military force are "Declarations of War."
There are also diplomatic reasons for a dislike of "declaring war" on a country, as it can often be perceived as holding an entire nation responsible for the actions of a few of its citizens.[citation needed] In the case of the most recent public opposition, those who support such actions have noted that, in the case of the wars in Afghanistan and Iraq, there was no 'target' for a legal declaration of war, rather political groups or individuals. On the other hand, many argue that since an invading army seeks to, or at least actually does, occupy and cause havoc to an entire target country and its population (as opposed to the target political groups or individuals), the aforementioned justifications are tenuous at best.
Many against formal declarations of war also argue that such declarations "acknowledge sovereignty" of a target government often contended by the United States to be an illegitimate regime.[citation needed] By declaring war, the United States must acknowledge diplomatically that the target of hostilities are, in fact, the recognized leaders of the country with which the war is declared, therefore often weakening the argument for "liberating" a people of the said country from a tyrannical or illegitimate regime. However, the historical record disagrees somewhat on this point.[citation needed] The Barbary Coast War was clearly waged against a political entity not regarded as the legitimate government of its nation of operation; the Border War, quietly declared as it was, was waged against a single person, Pancho Villa.[citation needed] Needless to say, in both instances many hundreds if not thousands of people neither belonging to a political entity nor being Pancho Villa also died in the event. (It should be noted that in both of the above-cited cases, Congress did not actually declare war.) Furthermore, it is sometimes argued that there is nothing particularly wrong with acknowledging diplomatically that a target government is actually in power, be it through legitimate means or not.
[edit] Current status of the U.S. debate
Extremely heated debate developed in the United States beginning on or around September 11, 2001. Opponents of the uses of military force since began to argue, chiefly, that the Iraq War was unconstitutional, because it lacked a clear declaration of war, and was waged over the objection of a significantly sized demographic in the United States.
Instead of formal war declarations, the United States Congress has begun issuing authorizations of force. Such authorizations have included the Gulf of Tonkin Resolution that greatly increased American participation in the Vietnam War, and the recent "Authorization of the Use of Military Force" (AUMF) resolution that started the War in Iraq. Some question the legality of these authorizations of force. Many who support declarations of war argue that they keep administrations honest by forcing them to lay out their case to the American people while, at the same time, honoring the constitutional role of the United States Congress.
Those who oppose requiring formal declarations of war argue that AUMFs satisfy constitutional requirements and have an established historical precedent (see Quasi-War). Furthermore, some have argued that the constitutional powers of the president as commander-in-chief invest him with broad powers specific to "waging" and "commencing" war.
The February 6, 2006, testimony of Alberto Gonzales to the U.S. Senate Judiciary Committee Hearing on Wartime Executive Power and the National Security Agency's Surveillance Authority, however indicates otherwise:
GONZALES: There was not a war declaration, either in connection with Al Qaida or in Iraq. It was an authorization to use military force. I only want to clarify that, because there are implications. Obviously, when you talk about a war declaration, you're possibly talking about affecting treaties, diplomatic relations. And so there is a distinction in law and in practice. And we're not talking about a war declaration. This is an authorization only to use military force.
The courts have consistently refused to intervene in this matter -- examples being Holmes v. United States and United States v. O'Brien -- and in practice presidents have the power to commit forces with congressional approval but without a declaration of war.
[edit] See also
- Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq
- Declaration of war
- War on Terrorism
- List of United States military history events
[edit] References
- ^ The Debates in the Federal Convention of 1787 reported by James Madison : August 17,The Avalon Project, Yale Law School, retrieved 13 Feb 2008
- ^ BBC News, On This Day
- ^ Whereas the Government of Germany has formally declared war against the government and the people of the United States of America... the state of war between the United States and the Government of Germany which has thus been thrust upon the United States is hereby formally declared. The War Resolution
- ^ THE PRESIDENT'S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM
[edit] External links
- The House of Rep, Republican Study Committee of War and Military Authorized Conflicts. 2003.
- Declarations of war and votes
- Text of Declaration of War on Japan
- Text of Declaration of War of Germany
- Text of Declaration of War on Bulgaria
- Authorization for Use of Military Force — signed September 18, 2001
- House Joint Resolution Authorizing Use of Force Against Iraq — signed October 16, 2002
- Instances of Use of United States Forces Abroad, 1798–1993
- A partial list of U.S. military interventions from 1890 to 2006
