WHY CONGRESSIONAL POWER TO DECLARE WAR DOES NOT PROVIDE AN EFFECTIVE CHECK ON THE PRESIDENT

By MICHAEL C. DORF

Wednesday, Mar. 06, 2002

Among the complaints leveled against King George III in the Declaration of Independence was that he attempted to make "the Military independent of and superior to the Civil power." The Framers of the U.S. Constitution sought to avoid a repetition of this evil by making the President, an elected and civilian figure, the Commander in Chief of the armed forces.

But the Framers did not stop there. Fearful that even an elected President might overreach, they divided military authority between the Commander in Chief and Congress. They assigned to Congress the power to declare war, to "make rules concerning captures on land and water," and--through its taxing and spending powers--the ability "[t]o raise and support armies."

In modern times, however, Congress has often been either unable or unwilling to exercise its constitutional responsibility to act as a check on the President's warmaking power. Recently, Senate Majority Leader Daschle criticized the Administration's level of consultation with Congress - only to be met with a strong, adverse reaction by Republicans. The hostility Daschle faced is only the latest example of the difficulties members of Congress encounter when they attempt to check Executive war-making power.

Congressional Actions Short of Declaring War

Congress has not formally declared war since World War II, even though the intervening years have witnessed substantial U.S. military involvement overseas.

This is not to say, however, that Congress has played no part in the decisions to commit troops. The Tonkin Gulf Resolution authorized military action in Vietnam. Similarly, Congress authorized the use of force against Iraq in 1991. And in September 2001, Congress authorized President Bush "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons . . . ."

But in each of these military conflicts, Congress stopped short of declaring war. Why?

One answer is that formal declarations of war are a relic of the Eighteenth Century. Modern military conflicts are too fluid, and arise too suddenly, for a declaration of war to serve any practical purpose.

Moreover, when Congress authorized military action against the perpetrators of the September 11 attacks, it did not know their precise identities. And to the extent that Congress understood al Qaeda to be the main enemy, a question arises as to whether it can declare war on an entity other than a state.

This explanation does not explain Congress's failure to declare war in other recent military conflicts, however, where there were clearly identifiable state enemies: Iraq in the Persian Gulf, and Yugoslavia in Kosovo. Yet in neither case did Congress declare war.

Indeed, in the Kosovo conflict, Congress did not even formally authorize the use of military force. Although the Senate passed a resolution authorizing air attacks, that resolution failed in the House of Representatives. But just over a week later, the House passed a bill funding the war anyway.

The Congressional Dilemma and Response

Congress's somewhat inconsistent actions in the Kosovo conflict illustrate the difficulty it often faces when the President uses military force. Even if Congress would be inclined against military action, once troops are in the field under enemy fire, Congress can only block such action at the cost of endangering those troops and potentially undermining the national interest. Yet Congress is virtually powerless to prevent the President from using military force in the first place.

It has long been recognized that, even absent a formal declaration of war, the President may, on his own authority, use military force to carry out the Congressionally delegated power to "suppress insurrections and repel invasions." Thus, for example, in The Prize Cases the Supreme Court upheld President Lincoln's Civil War blockade of southern ports. And no one doubts that in the event of an actual attack on the United States, the President can and should use military force even if there is insufficient time to seek Congressional approval.

How long does an emergency response last? In 1973, Congress adopted the War Powers Resolution in an effort to strengthen its hand vis-a-vis the President. The Resolution was enacted in response to the perception that U.S. military involvement in Vietnam escalated without proper Congressional approval.

The War Powers Resolution authorizes Presidential use of force only in a narrow range of circumstances. Moreover, it obliges the President to report to Congress within 48 hours of deploying troops, and to obtain specific Congressional approval for continued deployment within sixty days.

The Relative Ineffectiveness of the War Powers Resolution

Since its adoption, the War Powers Resolution has come under criticism. Several Presidents have voiced the view that the Resolution is invalid insofar as it purports to limit a power given to the Commander in Chief by the Constitution.

From the other side, critics who believe that Congress should have more effective checks on Presidential warmaking powers have observed that the War Powers Resolution does little to accomplish this goal. Despite the Resolution's passage, the very same factors that made Congress reluctant to oppose Presidential warmaking before the adoption of the War Powers Resolution continue to operate.

After troops are in the field--whether formally authorized by Congress or not--it can appear unpatriotic to call for the abandonment of their mission. Thus, the formal need for Congressional approval is superseded by the political impossibility of Congress's withholding that approval once the President has unilaterally committed troops. Thus, in practice, despite the Framers' best efforts, the dice are loaded against a substantial Congressional role in supervising the conduct of war.

Intense fighting in the last several days suggests that Senator Daschle was right when he remarked that the military action in Afghanistan has not yet "broken the back of Al Qaeda." But whether he is right or wrong is not the point. Given the political risks, it is surprising that a Congressional leader would seek greater involvement in war matters. Accordingly, rather than having his patriotism questioned, Daschle should be commended for taking his constitutional obligation seriously.


Michael C. Dorf is Vice Dean and Professor of Law at Columbia University.

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