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Can US Presidents Start Wars?

Can US Presidents Start Wars?


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The United States Constitution is clear about which branch of government has the power to declare war. In Article I, Section 8, the Constitution states that “Congress shall have the power… To declare war.” But that simple statement has left room for interpretation, and centuries of American presidents have claimed the right to launch military attacks without congressional approval.

“The history of war powers has been a history of disputes between branches about what the meaning of ‘war’ is, what the meaning of Congress’s authority over war is, and what kinds of actions do and don’t count as war,” says Mariah Zeisberg, associate professor of law and politics at the University of Michigan, and author of War Powers: The Politics of Constitutional Authority.

When the Constitution was being written and debated, the framers clearly wanted to break from the British political tradition of investing all war powers in the executive (the king), but they also knew that legislatures could be dangerously slow to respond to immediate military threats. So instead of granting Congress the power to “make” war, as was first proposed, founders like James Madison changed the language to “declare” war.

Madison was no fan of executive overreach—“the Executive is the branch of power most interested in war and most prone to it,” he wrote to Thomas Jefferson—but that change of wording in Article I, Section 8 of the Constitution implied that the president, as commander in chief (Article II, Section 2), retained certain powers to “make” war, if not declare it himself.

In the early days of the United States, the understanding was that the president could order the military to defend the country against an attack, but that any sustained military action would require congressional approval.

The Mexican-American War and Civil War

It didn't take long before Congress and the president would clash over war powers. In 1846, President James Polk ordered the U.S. army to occupy territory in the newly annexed state of Texas. Congress recognized Polk’s move as a de facto declaration of war with Mexico, which claimed the territory as its own and vowed to defend it against an American “invasion.”

Congress ultimately granted Polk an official declaration of war, allowing for sustained military action. But the House of Representatives later censured the president for a conflict it believed was “unnecessarily and unconstitutionally begun by the President of the United States."

Even President Abraham Lincoln, a passionate defender of congressional war powers when he served in the House of Representatives, took liberties when taking his first military actions of the Civil War. While Congress was in recess in 1861, Lincoln issued proclamations to assemble Northern state militias and initiate a blockade of the South.

Lincoln admitted that he took these military actions without Congressional approval, later writing that “whether strictly legal or not, [the actions] were ventured upon under what appeared to be a popular demand and a public necessity, trusting then, as now, that Congress would readily ratify them.”

War in Vietnam Drives Push for War Powers Resolution

While Congress declared war six times (against six different countries) in World War II, President Harry Truman never asked for congressional authorization to send U.S. troops to Korea. Truman instead authorized the action under a United Nations resolution, claiming the conflict was akin to a “police action” not a “war.”

The war powers debate really came to a head during America’s involvement in Vietnam. In 1964, Congress authorized President Lyndon Johnson to use force in Southeast Asia in response to a North Vietnamese attack on American ships in the Gulf of Tonkin. The Gulf of Tonkin Resolution wasn’t a declaration of war, but that’s what was raging in Vietnam by 1973.

By that point, President Richard Nixon was in office, and the leaked Pentagon Papers revealed that Congress had been misled about America’s involvement in Southeast Asia. With public sentiment against the War in Vietnam, Congress passed the War Powers Resolution of 1973 to rein in presidential misuses of military power.

But if the War Powers Resolution was intended to, as it states, “fulfill the intent of the framers of the Constitution” and restore the war authority of Congress, it wasn’t terribly effective. The main provision of the law is that presidents can only take military action for 60 days before they need to get statutory approval from Congress, but it doesn’t stop presidents from acting unilaterally to put U.S. troops on the ground in the first place.

“After Nixon, it’s gone on from one president to the next—they believe they can use military force against one country after another,” says Louis Fisher, a visiting scholar at the William & Mary Law School who served for 35 years as senior specialist in separation of powers at the Congressional Research Service.

Military Force—Without Declaration of War

President Ronald Reagan invaded Grenada. President George H.W. Bush invaded Panama and Somalia. President Bill Clinton used military force in Iraq, Haiti, Bosnia, Afghanistan, Sudan and Kosovo all without congressional approval. (President George W. Bush didn’t declare war on Afghanistan or Iraq, but Congress authorized the use of military force for those engagements). President Barack Obama ordered targeted military strikes in Libya in 2011 and dozens of unmanned drone strikes in Pakistan without congressional approval.

While the War Powers Resolution has its limits, Zeisberg argues it is still legally and constitutionally significant.

“It’s been effective in the sense that professional executive branch lawyers in a functioning executive branch do internalize it and treat it as law,” says Zeisberg. “The War Powers Resolution has been useful in fostering a sense of transparency and accountability, and an idea of where the baseline is—what’s to be expected from a president.”


Actually, U.S. presidents have been going to war without Congress since the beginning

In the modern era, it’s become increasingly common for presidents to send troops into battle without authorization from Congress — a practice many argue is unconstitutional. During the 2011 intervention in Libya for intance, Yale law professor Bruce Ackerman wrote that “Barack Obama’s administration is breaking new ground in its construction of an imperial presidency — an executive who increasingly acts independently of Congress at home and abroad.” It may be unconstitutional, but how unprecedented is it?

There’s a general consensus that the imperial presidency model of warfighting began with Theodore Roosevelt and expanded dramatically after World War II — the last time Congress formally declared war. The War Powers Resolution of 1973 was meant to check the president’s ability to do this, but several administration’s have skirted it. A paper by William D. Adler in Presidential Studies Quarterly analyzes the “small wars” of early U.S. history and found that the tradition of the president acting as “generalissimo of the nation” as the pseudonymous “Cato” put it in the Anti-Federalist Papers, goes back much further than we think.

America’s two largest pre-civil war conflicts — the War of 1812 and the Mexican American War — were both organized by Congress, though James Polk played a major hand in instigating the second one. But there were dozens of other conflicts, sometimes involving thousands of combatants. These included at least 10 major conflicts with Indian tribes between the 1790s and 1850s as well as ” the Quasi-War with France during the late 1790s the conflict with the Barbary pirates during the 1800s (which had been an ongoing problem since Washington’s presidency) General Andrew Jackson’s repeated invasions of Spanish Florida naval skirmishes in Sumatra during the 1830s the so-called Patriot War from 1839 through 1841 on the northern border “bleeding Kansas” during the 1850s and the Mormon war in Utah later that decade.”

Adler argues that in all these conflicts, Congress — if involved at all — generally simply delegated warmaking powers to the executive branch and only excercised oversight after the fact. This was particularly this case in conflicts with Indian tribes, which were generally overseen by the War Department in cooperation with state governments without Congressional deliberations.

In a scenario familiar from the Iraq War era, Congress often didn’t realize quite how much power it was granting to the president. Adler recounts what happened in 1792 when Congress agreed to George Washington’s request for 5,000 additional troops to fight Indian tribes in the Ohio Territory:

During the conflict, Congress does not seem to have comprehended just how much power
it had delegated to the executive branch. As Richard Kohn explains, when St. Clair asked for permission to call up the militia, Congress authorized it, but “only later, after Washington cited the amendment as authorization for Harmar’s campaign, did Congress understand fully that it had given the President permission to wage war on his own authority.” Similarly, when Congress appropriated $1 million to fund the ongoing operations, this was taken by the administration as an implicit authorization to continue the fighting at no time did anyone think of asking for a formal resolution allowing the war to progress.

Early American presidents also had a habit of going to war first and asking permission later, such as when James Madison authorized the Army to seize territory in West Florida in 1810. As a general, Andrew Jackson invaded Florida three different times without asking permission from the president — not to mention Congress. As president, Jackson continued to follow the imperial model, interpreting the Indian Removal Act of 1830 as carte blanche to use military force against Indian tribes who refused to relocate, an event now known as the Trail of Tears. This included the forced removal of the Florida Seminoles, which the largest U.S. military engagement since the War of 1812, with nearly 9,000 soldiers involved.

In addition to the question of presidential powers, the reconsideration of early America’s small wars is also interesting in light of the question of just how many wars America is currently fighting, which I discussed a bit last week. The persistent state of ongoing, low-level military conflict we have now may not actually be that much of a historical aberration for the U.S., though the fact that there may be a slight legal and political resemblence to early America’s Indian Wars is hardly reassuring about the current state of affairs.

In the modern era, it’s become increasingly common for presidents to send troops into battle without authorization from Congress — a practice many argue is unconstitutional. During the 2011 intervention in Libya for intance, Yale law professor Bruce Ackerman wrote that “Barack Obama’s administration is breaking new ground in its construction of an imperial presidency — an executive who increasingly acts independently of Congress at home and abroad.” It may be unconstitutional, but how unprecedented is it?

There’s a general consensus that the imperial presidency model of warfighting began with Theodore Roosevelt and expanded dramatically after World War II — the last time Congress formally declared war. The War Powers Resolution of 1973 was meant to check the president’s ability to do this, but several administration’s have skirted it. A paper by William D. Adler in Presidential Studies Quarterly analyzes the “small wars” of early U.S. history and found that the tradition of the president acting as “generalissimo of the nation” as the pseudonymous “Cato” put it in the Anti-Federalist Papers, goes back much further than we think.

America’s two largest pre-civil war conflicts — the War of 1812 and the Mexican American War — were both organized by Congress, though James Polk played a major hand in instigating the second one. But there were dozens of other conflicts, sometimes involving thousands of combatants. These included at least 10 major conflicts with Indian tribes between the 1790s and 1850s as well as ” the Quasi-War with France during the late 1790s the conflict with the Barbary pirates during the 1800s (which had been an ongoing problem since Washington’s presidency) General Andrew Jackson’s repeated invasions of Spanish Florida naval skirmishes in Sumatra during the 1830s the so-called Patriot War from 1839 through 1841 on the northern border “bleeding Kansas” during the 1850s and the Mormon war in Utah later that decade.”

Adler argues that in all these conflicts, Congress — if involved at all — generally simply delegated warmaking powers to the executive branch and only excercised oversight after the fact. This was particularly this case in conflicts with Indian tribes, which were generally overseen by the War Department in cooperation with state governments without Congressional deliberations.

In a scenario familiar from the Iraq War era, Congress often didn’t realize quite how much power it was granting to the president. Adler recounts what happened in 1792 when Congress agreed to George Washington’s request for 5,000 additional troops to fight Indian tribes in the Ohio Territory:

During the conflict, Congress does not seem to have comprehended just how much power
it had delegated to the executive branch. As Richard Kohn explains, when St. Clair asked for permission to call up the militia, Congress authorized it, but “only later, after Washington cited the amendment as authorization for Harmar’s campaign, did Congress understand fully that it had given the President permission to wage war on his own authority.” Similarly, when Congress appropriated $1 million to fund the ongoing operations, this was taken by the administration as an implicit authorization to continue the fighting at no time did anyone think of asking for a formal resolution allowing the war to progress.

Early American presidents also had a habit of going to war first and asking permission later, such as when James Madison authorized the Army to seize territory in West Florida in 1810. As a general, Andrew Jackson invaded Florida three different times without asking permission from the president — not to mention Congress. As president, Jackson continued to follow the imperial model, interpreting the Indian Removal Act of 1830 as carte blanche to use military force against Indian tribes who refused to relocate, an event now known as the Trail of Tears. This included the forced removal of the Florida Seminoles, which the largest U.S. military engagement since the War of 1812, with nearly 9,000 soldiers involved.

In addition to the question of presidential powers, the reconsideration of early America’s small wars is also interesting in light of the question of just how many wars America is currently fighting, which I discussed a bit last week. The persistent state of ongoing, low-level military conflict we have now may not actually be that much of a historical aberration for the U.S., though the fact that there may be a slight legal and political resemblence to early America’s Indian Wars is hardly reassuring about the current state of affairs.

Joshua Keating was an associate editor at Foreign Policy Twitter: @joshuakeating


What are a U.S. president’s war powers?

The Senate approved a war powers resolution on Thursday that would curtail President Donald Trump’s authority to take military action in Iran without congressional approval in a bipartisan 55-45 vote.

Trump could still veto the resolution. It would then take two-thirds of the Senate, or 67 votes, to override him.

The House of Representatives passed a separate, nonbinding resolution last month after Trump ordered a drone strike that killed a prominent Iranian military figure–Qassem Soleimani. His decision reopened a potentially explosive debate about when presidents can use their military power without approval from Congress.

As that debate swirls, we thought it might be helpful to look at recent conflicts which were—or were not—authorized by Congress.

First, some important terms that you will likely hear as part of the debate:

Article II powers – this is a reference to the president’s powers enumerated in Article II of the U.S. Constitution. Article II designates the president as the commander-in-chief of the U.S. military.

War powers resolution – this can be a broad term, referring to an act of Congress intended to grant, or more often limit, broad war powers of the president. But it also is a phrase used to describe the 1973 War Powers Act, which set Congressional guidelines for the president’s deployment of military force.

Authority to Use Military Force – this is a resolution passed by each house of Congress which grants a president specific powers to launch military action, often against a specific group or location.

Recent major hostilities and authorization or lack thereof:

Korean War. 1950 – 1953.
No Congressional authorization.
1.7 million U.S. troops deployed in theater.

Vietnam War. 1964 – 1974.
No Congressional authorization.
3.4 million U.S. troops deployed in theater.

Gulf War. 1991.
Authorization for Use of Military Force granted by Congress.
House 250-183. Senate 52-47.
500,000 U.S. troops sent to Persian Gulf.

War on Terror. 2001 – present.
Authorization for Use of Military Force granted by Congress.
House 420 – 1. Senate 98 – 0.
Initially included 775,000 troops sent to Afghanistan.


Can a president send U.S. to war?

Whatever the outcome of President Barack Obama’s foray into Libya, it exposed the growing divide between Congress and the presidency over authority to commit military forces abroad. For more than 150 years, presidents have encroached on Congress’s war making responsibilities, leaving the legislative branch increasingly irrelevant there.

The most recent effort to “insure … collective judgment,” codified in the 1973 War Powers Resolution, has proven hollow. Congress has no authority to compel consultation before the president commits forces — leaving the executive branch a 60-day window to get legislative approval for continued operations. This has allowed Obama free reign to intervene in North Africa without congressional vetting or endorsement.

Current events ought to give us pause. As the coequal policy branch and official check on executive overreach, Congress should share the onerous decision to go to war.

This doesn’t remove the responsibility of the president, as commander in chief, from exercising inherent powers to protect the nation from imminent harm. But, to date, this circumstance has never appeared. Pearl Harbor, the Cuban missile crisis and even Sept. 11 granted decision makers time to reflect and plan.

Fortunately, Congress does not have to start from scratch to reassert authority. Its quiver contains draft legislation, proposed during the war powers debate and after that remains germane.

The original Senate bill required congressional authorization for military commitment, without a war declaration, subject to two exceptions — an armed attack on the United States or its forces or protection of citizens requiring evacuation. Later bills called on Congress to establish a consultative group to meet with the president before authorizing military action.

Either would reduce unfettered presidential power — assuming Congress took its independent responsibility seriously, rather than act as a presidential rubber stamp. The Libya war should reopen consideration. History adds perspective.

The Constitution’s framers would be surprised by the war powers that presidents exercise today. But tensions emerged early between the executive branch and Congress. Under Article 1, Section 8, Congress has exclusive authority to “declare” war. Practice has proved more challenging. Pressed by Barbary pirates holding U.S. merchant ships and crews hostage in 1790, Secretary of State Thomas Jefferson cautioned President George Washington, “It rests with Congress to decide between war, tribute and ransom.”

Though Congress balked then, it effectively reversed itself in 1802. It passed the Protection of the Commerce and

Seaman Act, after then-President Jefferson dispatched warships to the region in 1801.

A badly divided Congress mustered its formal war authority for the first time in 1812 to confront Britain’s interception of U.S. vessels, impressment of sailors, support of Indian raids and the lure to expand U.S. land holdings into British-occupied Canada. Remembered for Britain’s burning of the Capitol and the White House, the war, which ended in the status quo ante bellum, revealed a pugnacious America.

Further demonstration came in 1846, when the United States took on a far weaker nation, Mexico — setting the stage for Congress’s eroding war authority. Washington was seeking to expand the country’s boundaries with the Mexican-dominated Southwest to California.

Without congressional consent, President James Polk promoted conflict by authorizing forces to cross the disputed Texas-Mexico boundary. Mexico’s response baited Congress to declare war, leading one soon-to-be-famous congressman, Abraham Lincoln, to join colleagues in calling the conflict both unnecessary and unconstitutional.

By the 1890s, after the Civil War — which Lincoln and Congress treated as a domestic insurrection — and Reconstruction, the United States entered an era of military involvement that continues today. For the next 50 years, three war declarations followed attacks on U.S. military and commercial vessels: the Spanish-American War, World War I and World War II.

But another pattern emerged as presidents authorized occupations of the Dominican Republic, Nicaragua, Haiti, Panama, Honduras and Mexico — all without declarations. As President Woodrow Wilson prepared to send troops to Haiti in 1916, he quipped to Secretary of State William Jennings Bryant, “I fear we do not have legal authority.”

No congressional reprimand ensued.

The Cold War boosted presidential war making. A U.N. resolution, rather than a war declaration, authorized President Harry Truman’s “police action” in Korea.

In Vietnam, President Lyndon Johnson relied on the Tonkin Gulf Resolution, mandating “all necessary measures … to prevent further aggression.” Both Presidents George H.W. Bush and George W. Bush used similar resolutions in the Iraq wars. A broad counter-terrorism resolution rationalized the U.S. invasion of Afghanistan.

Congressional resolutions bring advantages to both branches of government. They relieve legislators of the onerous responsibly to declare war. “All necessary measures” gives presidents the authority they need to conduct wars.

But many presidents clearly find even these resolutions too burdensome. The result has been both small and large commitments, despite the War Powers Resolution, with minimal or no congressional consultation: the Mayaguez incident (1975), Iran hostage rescue effort (1980), El Salvador (1981), Lebanon (1982), Grenada (1983), Libya (1986), Panama (1989), Iraq (May 1991, 1993), Somalia (1993), Bosnia (1993-1995), Haiti (1993, 2004) and Kosovo (1999). Libya is now added to this history.

Now, with the United States no longer flush to fight wars of choice and a recent history of wars gone poorly, the country ought recall President James Madison’s admonition, since it weighs whether presidents alone should commit the country to war: “Those who are to conduct a war cannot in the nature of things be proper or safe judges, whether a war ought to be commenced, continued or concluded.”


47 U.S. Code § 606 - War powers of President

During the continuance of a war in which the United States is engaged, the President is authorized, if he finds it necessary for the national defense and security, to direct that such communications as in his judgment may be essential to the national defense and security shall have preference or priority with any carrier subject to this chapter. He may give these directions at and for such times as he may determine, and may modify, change, suspend, or annul them and for any such purpose he is authorized to issue orders directly, or through such person or persons as he designates for the purpose, or through the Commission. Any carrier complying with any such order or direction for preference or priority herein authorized shall be exempt from any and all provisions in existing law imposing civil or criminal penalties, obligations, or liabilities upon carriers by reason of giving preference or priority in compliance with such order or direction.

It shall be unlawful for any person during any war in which the United States is engaged to knowingly or willfully, by physical force or intimidation by threats of physical force, obstruct or retard or aid in obstructing or retarding interstate or foreign communication by radio or wire. The President is authorized, whenever in his judgment the public interest requires, to employ the armed forces of the United States to prevent any such obstruction or retardation of communication: Provided, That nothing in this section shall be construed to repeal, modify, or affect either section 17 of title 15 or section 52 of title 29.

Upon proclamation by the President that there exists war or a threat of war, or a state of public peril or disaster or other national emergency, or in order to preserve the neutrality of the United States, the President, if he deems it necessary in the interest of national security or defense, may suspend or amend, for such time as he may see fit, the rules and regulations applicable to any or all stations or devices capable of emitting electromagnetic radiations within the jurisdiction of the United States as prescribed by the Commission, and may cause the closing of any station for radio communication, or any device capable of emitting electromagnetic radiations between 10 kilocycles and 100,000 megacycles, which is suitable for use as a navigational aid beyond five miles, and the removal therefrom of its apparatus and equipment, or he may authorize the use or control of any such station or device and/or its apparatus and equipment, by any department of the Government under such regulations as he may prescribe upon just compensation to the owners. The authority granted to the President, under this subsection, to cause the closing of any station or device and the removal therefrom of its apparatus and equipment, or to authorize the use or control of any station or device and/or its apparatus and equipment, may be exercised in the Canal Zone.

Upon proclamation by the President that there exists a state or threat of war involving the United States, the President, if he deems it necessary in the interest of the national security and defense, may, during a period ending not later than six months after the termination of such state or threat of war and not later than such earlier date as the Congress by concurrent resolution may designate, (1) suspend or amend the rules and regulations applicable to any or all facilities or stations for wire communication within the jurisdiction of the United Commission, (2) cause the closing of any facility or station for wire communication and the removal therefrom of its apparatus and equipment, or (3) authorize the use or control of any such facility or station and its apparatus and equipment by any department of the Government under such regulations as he may prescribe, upon just compensation to the owners.

The President shall ascertain the just compensation for such use or control and certify the amount ascertained to Congress for appropriation and payment to the person entitled thereto. If the amount so certified is unsatisfactory to the person entitled thereto, such person shall be paid only 75 per centum of the amount and shall be entitled to sue the Unitedsection 1491 of title 28.

Nothing in subsection (c) or (d) shall be construed to amend, repeal, impair, or affect existing laws or powers of the States in relation to taxation or the lawful police regulations of the several States, except wherein such laws, powers, or regulations may affect the transmission of Government communications, or the issue of stocks and bonds by any communication system or systems.

Nothing in subsection (c) or (d) shall be construed to authorize the President to make any amendment to the rules and regulations of the Commission which the Commission would not be authorized by law to make and nothing in subsection (d) shall be construed to authorize the President to take any action the force and effect of which shall continue beyond the date after which taking of such action would not have been authorized.

Any person who willfully does or causes or suffers to be done any act prohibited pursuant to the exercise of the President’s authority under this section, or who willfully fails to do any act which he is required to do pursuant to the exercise of the President’s authority under this section, or who willfully causes or suffers such failure, shall, upon conviction thereof, be punished for such offense by a fine of not more than $1,000 or by imprisonment for not more than one year, or both, and, if a firm, partnership, association, or corporation, by fine of not more than $5,000, except that any person who commits such an offense with intent to injure the United States, or with intent to secure an advantage to any foreign nation, shall, upon conviction thereof, be punished by a fine of not more than $20,000 or by imprisonment for not more than 20 years, or both.

This chapter, referred to in subsec. (a), was in the original “this Act”, meaning act June 19, 1934, ch. 652, 48 Stat. 1064, known as the Communications Act of 1934, which is classified principally to this chapter. For complete classification of this Act to the Code, see section 609 of this title and Tables.

For definition of Canal Zone, referred to in subsec. (c), see section 3602(b) of Title 22, Foreign Relations and Intercourse.

In subsec. (e), “section 1346 or section 1491 of title 28” substituted for “paragraph 20 of section 24 or by section 145, of the Judicial Code, as amended” (which were classified to sections 41(20) and 250 of former Title 28, Judicial Code and Judiciary) on authority of act June 25, 1948, ch. 646, 62 Stat. 869, the first section of which enacted Title 28, Judiciary and Judicial Procedure. Section 1346 of Title 28 sets forth the basic jurisdiction of the district courts in cases in which the UnitedSection 1491 of Title 28 sets forth the basic jurisdiction of the UnitedJudicial Code were also classified to sections 1496, 1501, 1503, 2401, 2402, and 2501 of Title 28.

1951—Subsec. (c). Act Oct. 24, 1951 , § 1, clarified scope of President’s powers to use, control, and close radio facilities of all kinds which might be useful to an enemy for navigational purposes.

Subsec. (h). Act Oct. 24, 1951 , § 2, added subsec. (h).

1947—Subsec. (h). Act July 25, 1947 , struck out subsec. (h) which related to modification of certain sections of this title until six months after termination of World War II for the protection ofJan. 26, 1942 , § 1, added subsec. (d) and redesignated former subsec. (d) as (e).

Subsecs. (f), (g). Act Jan. 26, 1942 , § 2, added subsecs. (f) and (g).

Subsec. (h). Act Dec. 29, 1942 , added subsec. (h).

Act July 25, 1947, ch. 327, § 3, 61 Stat. 451, provided that in the interpretation of this section, the date July 25, 1947 , shall be deemed to be the date of termination of anyCongress and of the national emergencies proclaimed by the President on Sept. 8, 1939 , and May 27, 1941 .

Ex. Ord. No. 8964, eff. Dec. 10, 1941 , 6 F.R. 6367, relating to the use and control ofEx. Ord. No. 9831, eff. Feb. 24, 1947 , 12 F.R. 1363.

By virtue of the authority vested in me by the Constitution and statutes, including the Communications Act of 1934 (48 Stat. 1104, as amended 47 U.S.C. 606) and as President of the UnitedExecutive Order No. 8546 of September 24, 1940 , is abolished, and all property and records thereof are transferred to the Federal Communications Commission .

2. Executive Orders Nos. 8546 of September 24, 1940 , 8960 of December 6, 1941 , 8964 of December 10, 1941 , 9089 of March 6, 1942 , and 9183 of June 15, 1942 , are revoked.


Trump Is The First POTUS In 40 Years Not To Start a New War – Democrats Outraged

Sometimes it’s easy to miss the things that don’t happen,” said Tucker Carlson this week. “We are living in an unusual period in American history where we are living under an administration that hasn’t started a new war. That hasn’t happened in more than 40 years.

No one ever says that. Some people are upset about it. Some people want more war. A lot more war,” Tucker continued. “If you were watching the proceedings at the Democratic National Convention last night, you heard speaker after speaker urging America’s young people to get out there and get killed in some foreign country they can’t find on a map.”

You saw the Democratic nominee from several years ago, John Kerry, urge voters to vote Democrat so we can have more wars.

Exactly what I have been talking about! Tucker: "We are in an unusual period in history, where an administration has not started a new war. That hasn't happened in more than 40 years". #Trump is the first president in modern American history to not start any new wars! #Retweet. https://t.co/faiJUE0Q6U

&mdash Ross (@Rossfaer) August 21, 2020

In contrast to Trump, Barack Obama, the president who promised change, actually provided more of the same. The former president can congratulate himself on being the first Nobel Peace Prize winner to bomb seven different countries back to the Stone Age.

The president who preached hope also kept the military-industrial complex in fine fettle, selling a record $115 billion in weapons to Saudi Arabia, the world’s most repressive regime, and destabilized entire regions, creating a vacuum in which terrorists thrived.

During Barack Obama’s presidency, the U.S. bombed seven countries while supporting other destabilizing military actions throughout the Middle East.

Here’s a look at these seven countries and the effects of bombing. MPN reports:

Afghanistan — Despite the announced “end” of the Afghanistan War, significant U.S. military presence in Afghanistan remains. Drones are a frequent presence in Afghan skies. One strike earlier this month killed 12 people, according to Iran’s PressTV.

Iraq — The Obama administration has conducted over 5,000 airstrikes in Iraq and Syria in just the past year, David Lerman reported for Bloomberg Business. Despite ongoing U.S. military involvement, terrorism continues to be a deadly presence in Iraq’s cities.

Libya — While the European Union and its allies carried out many of the airstrikes during Libya’s civil war, the U.S. was instrumental in destabilizing that country through both military aid and direct support, especially during the lead up to Gen. Moammar Gadhafi’s overthrow in 2011. Now ISIS is also gaining a stronghold here and the country has been described as a failed state.

Pakistan — Drone strikes are also frequent in Pakistan, where the Bureau of Investigative Journalism estimated that only 4 percent of the victims could be identified as al-Qaida members. Although drone strikes on Pakistan began under George W. Bush, their frequency has dramatically increased under Obama, RT reported last year.


Is Trump Yet Another U.S. President Provoking a War?

The United States has a long history of provoking, instigating, or launching wars based on dubious, flimsy, or manufactured threats. In 1986, the Reagan Administration plotted to use U.S. military maneuvers off Libya’s coast to provoke Muammar Qaddafi into a showdown. The planning for Operation Prairie Fire, which deployed three aircraft carriers and thirty other warships, was months in the making. Before the Navy’s arrival, U.S. warplanes conducted missions skirting Libyan shore and air defenses—“poking them in the ribs” to “keep them on edge,” a U.S. military source told the Los Angeles Times that year. One official involved in the mission explained, “It was provocation, if you want to use that word. While everything we did was perfectly legitimate, we were not going to pass up the opportunity to strike.”

Qaddafi took the bait. Libya fired at least six surface-to-air missiles at U.S. planes. Citing the “aggressive and unlawful nature of Colonel Qaddafi’s regime,” the U.S. responded by opening fire at a Libyan patrol boat. “The ship is dead in the water, burning, and appears to be sinking. There are no official survivors,” the White House reported. In the course of two days, the U.S. destroyed two more naval vessels and a missile site in Sirte, Qaddafi’s home town. It also put Libya on general notice. “We now consider all approaching Libyan forces to have hostile intent,” the White House said.

The most egregious case was the U.S. invasion of Iraq, in 2003, which was based on bad intelligence that Baghdad had active weapons-of-mass-destruction programs. The repercussions are still playing out sixteen years (and more than four thousand American deaths) later. The beginning of the Vietnam War was authorized by two now disputed incidents involving U.S. warships in the Gulf of Tonkin. In response, Congress authorized President Johnson, in 1964, to “take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression.” The war dragged on for a decade, claiming the lives of fifty-seven thousand Americans and as many as a million Vietnamese fighters and civilians.

The pattern goes back even further. In 1898, the Spanish-American War was triggered by an explosion on the U.S.S. Maine, an American battleship docked in Havana Harbor. The Administration of President William McKinley blamed a Spanish mine or torpedo. Almost eight decades later, in 1976, the American admiral Hyman Rickover concluded that the battleship was destroyed by the spontaneous combustion of coal in a bunker next to ammunition. In 1846, President James Polk justified the Mexican-American War by claiming that Mexico had invaded U.S. territory, at a time when the border was not yet settled. Mexico claimed that the border was the Nueces River the United States claimed it was the Rio Grande, about a hundred miles away. One of the few voices that challenged Polk’s casus belli was Abraham Lincoln, then serving in Congress. Around fifteen hundred Americans died of battle injuries, and another ten thousand from illness.

Today, the question in Washington—and surely in Tehran, too—is whether President Trump is making moves that will provoke, instigate, or inadvertently drag the United States into a war with Iran. Trump’s threats began twelve days after he took office, in 2017, when his national-security adviser at the time, Michael Flynn, declared, in the White House press room, “As of today, we are officially putting Iran on notice.” Flynn, a former three-star general, was fired several weeks later and subsequently indicted for lying to the F.B.I. about his contacts with Russia. The Administration’s campaign against Iran, though, has steadily escalated, particularly in the past two weeks.

On May 5th, a Sunday, the White House issued an unusual communiqué—from the national-security adviser, John Bolton, not the Pentagon—announcing that a battleship-carrier strike group, led by the U.S.S. Abraham Lincoln, and a bomber task force, including B-52s, were deploying off Iran’s coast. The Lincoln was headed to the Middle East anyway, but its deployment was fast-tracked, U.S. officials told me. Bolton claimed that the Islamic Republic was engaged in “a number of troubling and escalatory indications and warnings,” but did not provide specifics. The Administration’s goal, he said, was “to send a clear and unmistakable message to the Iranian regime that any attack on United States interests or on those of our allies will be met with unrelenting force.” Bolton, who was a key player behind the U.S. war in Iraq, advocated bombing Iran before he joined the Trump White House.

Five days later, on May 10th, the Pentagon announced a second display of force: the U.S.S. Arlington and a battery of Patriot missile systems would join the Abraham Lincoln. The Arlington carries U.S. Marines and an array of aircraft, landing craft, and weapons systems to support amphibious assault, special-operations teams, and “expeditionary warfare.” A Patriot battery defends against ballistic missiles and aircraft. Both are meant to respond to “indications of heightened Iranian readiness to conduct offensive operations against U.S. forces and our interests,” the Pentagon said.

The Trump Administration is concerned that Iran, or its proxies, could strike U.S. assets in the Middle East, including in the Persian Gulf, Iraq, and Syria. The Iranians “have demonstrated the willingness and ability to attack our people, our interests, and our friends and allies in the confusing, complex zone just short of armed conflict,” General Kenneth McKenzie, the head of U.S. Central Command, said last week, at the Foundation for Defense of Democracies, in Washington.

Iran does, indeed, have a growing array of surrogates across the region. Lebanon’s Hezbollah—inspired, armed, and trained by Iran—is now the most powerful militia outside state control in the entire Middle East. In Syria, Tehran has mobilized Shiite allies from four countries—Lebanon, Iraq, Afghanistan, and Pakistan—to supplement its own forces helping President Bashar al-Assad reassert control over his fractured nation. Tehran has reportedly shipped short-range missiles to allies by boat through the Persian Gulf and deployed kits in Syria that convert imprecise rockets into missiles with greater range, accuracy, and impact. The Islamic Republic supports several Shiite militias in Iraq under the umbrella of the country’s Popular Mobilization Forces, which emerged in 2014, with Iraqi government approval, to fight ISIS. The caliphate has fallen, but the P.M.F. remains a powerful and divisive militia in Iraq.

Despite the Trump Administration’s aggressive stance, there have been no major incidents in the Persian Gulf for almost two years, after a spate of provocative acts by Iran—thirty-six in 2016 and fourteen in 2017—against U.S. warships, a Pentagon official told me. The last one was on August 14, 2017, when an Iranian drone approached the U.S.S. Nimitz as an F/A-18 was trying to land on the aircraft carrier. The drone, which was flying at night, did not have its lights on repeated radio calls to its controlling station went unanswered. The Nimitz was in international waters, beyond the twelve-mile limit any nation can claim.

“We haven’t seen an unsafe interaction since then,” Captain Bill Urban, the spokesman for U.S. Central Command, told me. “It has been a long time, considering how many incidents we had in 2016 and 2017.” The U.S. still has regular interactions with Iranian ships. “It’s not unusual to have several attack craft come out and approach our ships and take pictures. But now they routinely stop at a safe distance or approach in manner that is not escalatory,” he said. “We continue to remain vigilant.”

The U.S. military deployments are the latest steps in the Administration’s “maximum pressure” campaign. The U.S. designated Iran’s Revolutionary Guard Corps a terrorist organization last month and has imposed a steady stream of sanctions on Iran’s economy, the most recent of which were imposed last week and covered industrial metals produced in Iran. The Administration has vowed to keep increasing pressure until Iran changes its behavior—on its weapons-development programs, human-rights violations, support for militant movements, and intervention in other Middle East countries. So far, Tehran has not changed course.

“Frustration is building up in Washington, as maximum pressure has produced minimum strategic results, and the clock is ticking,” Ali Vaez, the director of the Iran program at the International Crisis Group, told me. “Some in Washington and the region would welcome, or try to provoke, a confrontation in an effort to achieve what sanctions have failed at so far—cutting Iran down to size.” Vaez outlined two scenarios: Iran digs in, “prompting a frustrated White House to double down yet again on measures that alienate key allies and risk regional escalation,” or Iran calculates that it has little left to lose “and decides to escalate further in the nuclear realm or in the region.”


President Obama's Legacy Is Endless War

I t&rsquos legacy-burnishing time at the Obama White House, the New York Times reports, and the administration plans to make the president available for &ldquoarticles that will allow Mr. Obama to showcase his major achievements.&rdquo In this brief interlude before the national party conventions rivet our attention on the fresh horrors to come, &rsquotis the season for &ldquoexit interviews&rdquo and think pieces about our 44th president&rsquos place in history.

The Washington Post recently debuted a hagiographic &ldquoVirtual Museum&rdquo of Obama&rsquos tenure, accompanied by &ldquoThe Content of His Presidency,&rdquo a 3,000-word chin-puller by Obama biographer David Maraniss.

Maraniss writes that as an undergraduate, Obama developed &ldquoan intense sense of mission &hellip sometimes bordering messianic,&rdquo and by the time he had the Oval Office in his sights, Obama had decided &ldquohis mission was to leave a legacy as a president of consequence.&rdquo Has he done that? Maraniss&rsquos timid, triple-hedged answer is: &ldquoit is now becoming increasingly possible to argue that he has neared his goal.&rdquo

Seven years in, it&rsquos clear that Obama has forged a legacy of enormous consequence. But the most transformational aspect of his presidency is something liberals never hoped for: as president, Barack Obama&rsquos most far-reaching achievement has been to strip out any remaining legal limits on the president&rsquos power to wage war.

Obama&rsquos predecessor insisted that he didn&rsquot need approval from Congress to launch a war yet in the two major wars he fought, George W. Bush secured congressional authorization anyway. By the time Obama hit the dais at Oslo to accept the Nobel Peace Prize in 2009, our 44th president had already launched more drone strikes than 󈬛” carried out during two full terms. Since then, he&rsquos launched two undeclared wars, and&mdashas Obama bragged in a speech last year defending the Iran deal&mdashbombed no fewer than seven countries.

In 2011, what officials called &ldquokinetic military action&rdquo in Libya completed the evisceration of the War Powers Resolution by successfully advancing the theory that if the U.S. bombs a country that can&rsquot hit back, we&rsquore not engaged in &ldquohostilities&rdquo against them. In the drone campaign and the current war with ISIS, Obama has turned a 14-year-old congressional resolution targeting al-Qaeda and the Taliban into a blank check for endless war, anywhere in the world. Last year, the army chief of staff affirmed that finishing the fight against ISIS will take another 󈫺 to 20 years.”

The issue that first animated Obama as an undergraduate was “the relentless, often silent spread of militarism in the country,&rdquo as he wrote in an article for the Columbia University Sundial as a college senior in 1983. In “Breaking the War Mentality,” Obama worried that the public&rsquos distance from the costs of war made resisting it &ldquoa difficult task,&rdquo but a vital one of &ldquoshifting America off the dead-end track&rdquo and undoing &ldquothe twisted logic of which we are today a part.&rdquo

&ldquoIt was his first expression of his views on any foreign policy subject,&rdquo James Mann writes in The Obamians, his 2012 account of national security decision-making in the Obama administration. &ldquoAnd years later, his aides felt it was deeply felt and lasting.&rdquo

Yet, as president, instead of &ldquobreaking the war mentality,&rdquo Obama has institutionalized it.

Will history judge Obama harshly because of that? Probably not. When it comes to presidential legacies, history has lousy judgment.

With the exception of Lyndon Johnson, whose presidential standing has suffered because of Vietnam, waging war rarely hurts a president&rsquos historical reputation. In fact, it usually helps.

Obama needn&rsquot fret too much about getting short shrift from historians. Not only has he been the sort of warrior president too many of them love, but by relentlessly expanding presidential war powers, he&rsquos also empowered the presidents to come.


Can the President Declare War Without Congress?

Can the President declare war without congress? The War Powers Resolution (also known as the War Powers Resolution of 1973 or the War Powers Act) (50 U.S.C. 1541–1548) is a federal law intended to check the president’s power to commit the United States to an armed conflict without the consent of the U.S. Congress. The Resolution was adopted in the form of a United States Congressional joint resolution. It provides that the U.S. President can send the Armed Forces into action abroad only by declaration of war by Congress, “statutory authorization,” or in case of “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”

Can the President Declare War Without Congress?

Ever since the Korean War, however, Article II, Section 2 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. But what the Framers meant by that clause was that once war has been declared, it was the president’s responsibility as commander in chief to direct the war. Hamilton spoke in such terms when he said that the president, although lacking the power to declare war, would have “the direction of war when authorized or begun.” The president acting alone was authorized only to repel sudden attacks (hence the decision to withhold from him only the power to “declare” war, not to “make” war, which was thought to be a necessary emergency power in case of foreign attack). Overwhelming legal precedent, dating from the earliest years of the republic, supports this interpretation.


There’s a lot of confusion, on right and left alike, regarding the president’s war powers under the Constitution. Here’s an overview of the most common claims on behalf of such powers, along with replies to these claims.

“The president has the power to initiate hostilities without consulting Congress.”

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 this way.

But what the framers actually meant by that clause was that once war has been declared, it was the President’s responsibility as commander-in-chief to direct the war. Alexander Hamilton spoke in such terms when he said that the president, although lacking the power to declare war, would have “the direction of war when authorized or begun.” The president acting alone was authorized only to repel sudden attacks (hence the decision to withhold from him only the power to “declare” war, not to “make” war, which was thought to be a necessary emergency power in case of foreign attack).

The Framers assigned to Congress what David Gray Adler has called “senior status in a partnership with the president for the purpose of conducting foreign policy.” Congress possesses the power “to regulate Commerce with foreign Nations,” “to raise and support Armies,” to “grant Letters of Marque and Reprisal,” to “provide for the common Defense,” and even “to declare War.” Congress shares with the president the power to make treaties and to appoint ambassadors. As for the president himself, he is assigned only two powers relating to foreign affairs: he is commander-in-chief of the armed forces, and he has the power to receive ambassadors.

At the Constitutional Convention, the delegates expressly disclaimed any intention to model the American executive exactly after the British monarchy. James Wilson, for example, remarked that the powers of the British king did not constitute “a proper guide in defining the executive powers. Some of these prerogatives were of a Legislative nature. Among others that of war & peace.” Edmund Randolph likewise contended that the delegates had “no motive to be governed by the British Government as our prototype.”

To repose such foreign-policy authority in the legislative rather than the executive branch of government was a deliberate and dramatic break with the British model of government with which they were most familiar, as well as with that of other nations, where the executive branch (in effect, the monarch) possessed all such rights, including the exclusive right to declare war. The Framers of the Constitution believed that history testified to the executive’s penchant for war. As James Madison wrote to Thomas Jefferson, “The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the Legislature.” Madison even proposed excluding the president from the negotiation of peace treaties, on the grounds that he might obstruct a settlement out of a desire to derive “power and importance from a state of war.”

At the Constitutional Convention, Pierce Butler “was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the nation will support it.” Butler’s motion did not receive so much as a second.

James Wilson assured the Pennsylvania Ratifying Convention, “This system will not hurry us into war it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our interest can draw us into war.”

In Federalist #69, Alexander Hamilton explained that the president’s authority “would be nominally the same with that of the King of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies all which by the constitution under consideration would appertain to the Legislature.”

According to John Bassett Moore, the great authority on international law who (among other credentials) occupied the first professorship of international law at Columbia University, “There can hardly be room for doubt that the framers of the constitution, when they vested in Congress the power to declare war, never imagined that they were leaving it to the executive to use the military and naval forces of the United States all over the world for the purpose of actually coercing other nations, occupying their territory, and killing their soldiers and citizens, all according to his own notions of the fitness of things, as long as he refrained from calling his action war or persisted in calling it peace.”

In conformity with this understanding, George Washington’s operations on his own authority against the Indians were confined to defensive measures, conscious as he was that the approval of Congress would be necessary for anything further. “The Constitution vests the power of declaring war with Congress,” he said, “therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure.”

“John Adams made war on France without consulting Congress.”

Supporters of a broad executive war power have sometimes appealed to the Quasi War with France, in the closing years of the eighteenth century, as an example of unilateral warmaking on the part of the president. Francis Wormuth, an authority on war powers and the Constitution, describes that contention as “altogether false.” John Adams “took absolutely no independent action. Congress passed a series of acts that amounted, so the Supreme Court said, to a declaration of imperfect war and Adams complied with these statutes.” (Wormuth’s reference to the Supreme Court recalls a decision rendered in the wake of the Quasi War, in which the Court ruled that Congress could either declare war or approve hostilities by means of statutes that authorized an undeclared war. The Quasi War was an example of the latter case.)

An incident that occurred during the Quasi War throws further light on the true extent of presidential war powers. Congress authorized the president to seize vessels sailing to French ports. But President Adams, acting on his own authority and without the sanction of Congress, instructed American ships to capture vessels sailing either to or from French ports. Captain George Little, acting under the authority of Adams’ order, seized a Danish ship sailing from a French port. When Little was sued for damages, the case made its way to the Supreme Court. Chief Justice John Marshall ruled that Captain Little could indeed be sued for damages in the case. “In short,” writes war powers expert Louis Fisher in summary, “congressional policy announced in a statute necessarily prevails over inconsistent presidential orders and military actions. Presidential orders, even those issued as Commander in Chief, are subject to restrictions imposed by Congress.”

Jefferson acted unilaterally against the Barbary pirates.”

Another incident frequently cited on behalf of a general presidential power to deploy American forces and commence hostilities involves Jefferson’s policy toward the Barbary states, which demanded protection money from governments whose ships sailed the Mediterranean. Congressional naval legislation had provided that, among other things, six frigates “shall be officered and manned as the President of the United States may direct.” (Final authorization for the funding of the last three of these ships was approved only in late 1798, so the frigates in question were ready for action immediately prior to Jefferson’s accession to office.) It was to this instruction and authority that Jefferson appealed when he ordered American ships to the Mediterranean. In the event of a declaration of war on the United States by the Barbary powers, these ships were to “protect our commerce & chastise their insolence – by sinking, burning or destroying their ships & Vessels wherever you shall find them.”

In late 1801, the pasha of Tripoli did declare war on the U.S. Jefferson sent a small force to the area to protect American ships and citizens against potential aggression, but insisted that he was “unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense” Congress alone could authorize “measures of offense also.” Thus Jefferson told Congress: “I communicate [to you] all material information on this subject, that in the exercise of this important function confided by the Constitution to the Legislature exclusively their judgment may form itself on a knowledge and consideration of every circumstance of weight.”

Jefferson consistently deferred to Congress in his dealings with the Barbary pirates. “Recent studies by the Justice Department and statements made during congressional debate,” Louis Fisher writes, “imply that Jefferson took military measures against the Barbary powers without seeking the approval or authority of Congress. In fact, in at least ten statutes, Congress explicitly authorized military action by Presidents Jefferson and Madison. Congress passed legislation in 1802 to authorize the President to equip armed vessels to protect commerce and seamen in the Atlantic, the Mediterranean, and adjoining seas. The statute authorized American ships to seize vessels belonging to the Bey of Tripoli, with the captured property distributed to those who brought the vessels into port. Additional legislation in 1804 gave explicit support for ‘warlike operations against the regency of Tripoli, or any other of the Barbary powers.’”

Consider also Jefferson’s statement to Congress in late 1805 regarding a boundary dispute with Spain over Louisiana and Florida. According to Jefferson, Spain appeared to have an “intention to advance on our possessions until they shall be repressed by an opposing force. Considering that Congress alone is constitutionally invested with the power of changing our condition from peace to war, I have thought it my duty to await their authority for using force…. But the course to be pursued will require the command of means which it belongs to Congress exclusively to yield or to deny. To them I communicate every fact material for their information and the documents necessary to enable them to judge for themselves. To their wisdom, then, I look for the course I am to pursue, and will pursue with sincere zeal that which they shall approve.”

“Presidents have sent men into battle hundreds of times without getting congressional authorization.”

This argument, like so much propaganda, originated with the U.S. government itself. At the time of the Korean War, a number of congressmen contended that “history will show that on more than 100 occasions in the life of this Republic the President as Commander in Chief has ordered the fleet or the troops to do certain things which involved the risk of war” without the consent of Congress. In 1966, in defense of the Vietnam War, the State Department adopted a similar line: “Since the Constitution was adopted there have been at least 125 instances in which the President has ordered the armed forces to take action or maintain positions abroad without obtaining prior congressional authorization, starting with the ‘undeclared war’ with France (1798-1800).”

We have already seen that the war with France in no way lends support to those who favor broad presidential war powers. As for the rest, the great presidential scholar Edward S. Corwin pointed out that this lengthy list of alleged precedents consisted mainly of “fights with pirates, landings of small naval contingents on barbarous or semi-barbarous coasts, the dispatch of small bodies of troops to chase bandits or cattle rustlers across the Mexican border, and the like.”

To support their position, therefore, the neoconservatives and their left-liberal clones are counting chases of cattle rustlers as examples of presidential warmaking, and as precedents for sending millions of Americans into war with foreign governments on the other side of the globe.

“The War Powers Resolution of 1973 gives the president the power to commit troops anywhere he likes for 90 days.”

The War Powers Resolution is incoherent. Section 2(c) provides that the president’s power to initiate military action is limited to “(1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” But at the same time, it authorizes the president to introduce military force for up to 90 days for any reason at all, which is obviously unconstitutional. I’ve written on this elsewhere.

For more on this topic, see Louis Fisher’s article on Thomas Eagleton.

“If the United Nations authorizes military action, the president does not need to consult Congress.”

The UN Charter itself notes that the Security Council’s commitment of member nations’ troops must be authorized by these nations’ “respective constitutional processes.” The Congressional Research Service’s Louis Fisher explains further: “Assured by Truman that he understood and respected the war prerogatives of Congress, the Senate ratified the UN Charter. Article 43 provided that all UN members shall make available to the Security Council, in accordance with special agreements, armed forces and other assistance. Each nation would ratify those agreements ‘in accordance with their respective constitutional processes.’ It then became the obligation of Congress to pass legislation to define the constitutional processes of the United States. Section 6 of the UN Participation Act of 1945 states with singular clarity that the special agreements ‘shall be subject to the approval of the Congress by appropriate Act or joint resolution.’ The procedure was specific and clear. Both branches knew what the Constitution required. The President would first have to obtain the approval of Congress.”

The UN Participation Act’s provisions regarding military action and the president have often been misread, thanks to a qualification in Article 6. But that qualification simply means that once the president has obtained congressional approval for a special agreement with the UN Security Council to make American forces available to the UN, he does not need congressional approval a second time to implement that agreement.

Fisher elaborates on the UN Participation Act of 1945 here. (See especially pp. 1249-1250.)

The remaining claims, somewhat more technical in nature, have been put forth most memorably by John Yoo, former deputy assistant attorney general under George W. Bush. These are paraphrases of Yoo’s positions. They are replied to in much more detail in Who Killed the Constitution? by the present author and Kevin Gutzman.

“In the eighteenth century, a ‘declaration of war’ was a merely rhetorical and communicative act – a ‘courtesy to the enemy’ – and did not involve the initiation or authorization of hostilities. Thus in granting Congress the power to declare war, the Constitution had merely given it the power to communicate to an enemy people (as well as to neutrals and to the country’s own citizens that a state of war existed the president, on the other hand, retained the power actually to bring the United States into war by commencing military action.”

This is partly correct. In the eighteenth century a “declaration of war” could indeed have this lesser meaning. But a review of eighteenth-century usage reveals that to “declare war” could also mean actually to begin a war.

Consider also that as the Constitution was being debated, Federalists sought to reassure skeptical anti-Federalists that the president’s powers were not so expansive after all. For one thing, the Federalists said, the president lacked the power to declare war. In order for their argument to carry any weight, “declare war” must have been taken to mean the power to initiate hostilities – for no anti-Federalist would have been appeased by “Sure, the president can take the country to war on his own initiative, but the power to draft declaratory statements will rest with Congress!”

If Yoo’s argument were correct, we should expect to see presidents in the years immediately following ratification of the Constitution taking bold military action without concerning themselves much about the will of Congress, which according to Yoo had only the power to issue declaratory statements. But as we have seen in the examples of Washington, Adams, and Jefferson, the opposite was in fact the case these early presidents were careful to defer to Congress.

“Congress may have some power over major wars, but lesser uses of force are reserved to the president alone.”

The evidence from the early republic contradicts this claim. Supreme Court justice Samuel Chase summed up the reigning doctrine in 1800: “Congress is empowered to declare a general war, or congress may wage a limited war limited in place, in objects and in time.” The 1804 case of Little v. Barreme involved a ship commander who, during the Quasi War with France in the late 1790s, had seized a ship that he thought was illegally trading with France. The commander was following a directive from President John Adams in seizing this ship, which had been coming from France. But Congress had authorized President Adams only to seize ships going to France in short, the president’s directive ventured beyond what congress had called for in this limited war. In a unanimous decision, the Court declared that the commander was liable for damages even though he had acted in accordance with a presidential directive. No such presidential directive could override the authority of Congress, said the Court.

“The Vesting Clause grants the president a wide array of unspecified powers pertaining to foreign affairs.

You won’t hear this argument in many casual discussions of presidential war powers, but since Yoo cited it in a draft memorandum he wrote for the Department of Defense in early 2002, it’s worth a brief reply. (Again, a lengthier reply can be found in Who Killed the Constitution?)

The Vesting Clause can be found in Article II, Section 1 of the Constitution “The executive Power shall be vested in a President of the United States of America.” According to this view, the Vesting Clause bestows on the president a host of unspecified powers in addition to the specific ones listed in the rest of Article II. The Framers of the Constitution, they say, thereby showed that they wanted the president to exercise all powers that would have been recognized in the eighteenth century as being fundamentally executive in nature, even if those powers are not actually mentioned in the Constitution. Congress, on the other hand, is assigned no such open-ended authority but is instead limited by the Constitution to all “legislative Powers herein granted,” a reference to the specific list of powers that then follows. The conclusion: the president may rightly exercise all powers relating to foreign affairs (since such powers are by their nature executive) except those specifically assigned to Congress.

Unfortunately for Yoo, he will not find any support for his views on executive power and the Vesting Clause in the state constitutions drawn up after 1776, in the Federalist, or in the state ratification debates. Nowhere in the state constitutions do we see any indication of an intent to vest the executive with an array of unspecified powers beyond those that were expressly mentioned. In Federalist #69, Alexander Hamilton argued that the American president would be much weaker than the British king, and cited the specific list of powers the Constitution grants the president. That argument would have been absurd and dishonest if the Vesting Clause had given the president an additional reservoir of powers beyond those Hamilton catalogued. Curtis Bradley and Martin Flaherty, writing in the Michigan Law Review, conclude that “in the thousands of pages recording these debates the argument that the Vesting Clause grants the president a general foreign affairs power simply does not appear.”

In short, there is no constitutional support for the presidential war powers claimed by mainstream left and right. That’s why they usually wind up claiming that the congressional power to declare war is “obsolete.” They can’t deny its existence, so they deny the document in which it is contained. And that means they lose the argument.


Watch the video: Ιστορία των Προέδρων των ΗΠΑ: Ποιος, πότε και για πόσο καιρό; (July 2022).


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