Yes, Congress Can Authorize War Without Formally 'Declaring' It

The lawfulness of action in Syria doesn't depend on magic words -- lawmakers can consent in any form they choose. 
Representative Peter King, shown here in 2011, has criticized Obama for asking Congress to authorize military action in Syria. (Kevin Lamarque/Reuters)

If recent history is a guide, the next few weeks will produce a deeply unedifying dialogue about the meaning of two words -- "declare war" -- in Article I § 8 cl. 11 of the Constitution. 

President Obama has asked Congress to resolve that he "is authorized to use the armed forces of the United States ... in connection with the use of chemical weapons or other weapons of mass destruction in the conflict in Syria ...."

There are already two general positions about such an authorizing resolution. One view regards it as lawless, on the grounds that any use of force is illegal unless Congress has passed a bill "declaring war." John Nichols of The Nation, for example, sees every military conflict since World War II as illegal, because presidents since Franklin Roosevelt "have not obtained the formal declarations of war required by the Constitution."

Others believe that, in the words of Rep. Peter King, "President Obama is abdicating his responsibility as commander-in-chief and undermining the authority of future presidents" by even asking. This side believes that Congress's only role is to "declare war" in the relatively few circumstances that is necessary; in all other times, the president may use the military as he sees fit. (When it looked as if Obama was not going to ask Congress for authorization, of course, King ripped him for that decision too, saying "a wise leader would reach out." Dude, that was then.)

Contemporary Americans almost never read the Constitution. Instead, we seize on individual magic-sounding words ("declare war," "natural born," "keep and bear," etc.). I've spent the last three years studying the text, and it seems to me that, even in a crisis, we might want to read the words with the care we'd bring to, say, the instructions for assembling an Ikea wardrobe.

"Declare war," as regular readers know, was inserted into the document fairly late in the Philadelphia Convention. According to Madison's Notes, the Committee of Detail's draft gave Congress the entire power to "make war." Madison records that he offered the change to make clear that a president could respond to a "sudden attack." He records four delegates as supporting "declare war" while opposing any power by the president to commence a war; two delegates as opposing "declare war" because they wanted Congress to have all of the war power; and one as urging that the power to "declare war" be given to the president. (The Convention had a total of 55 delegates, though not all were present every day.) The "declare" language was adopted by a vote of seven states to two. 

It's a pretty slender "legislative history" from which to derive an "original intent." The Notes, for one thing, are not an official record, and were kept by a participant with his own axe to grind. All we really know the Framers "intended" was to write the words "declare war" among the powers granted Congress, and, by implication, denied to the president.

What about the "original public meaning" of the phrase? There doesn't seem to have been a clear one. Almost at once, disputes arose about what the reference to "declare war" meant. Even before ratification, executive-power hawk Alexander Hamilton was pointing out in Federalist 25 that "the ceremony of a formal denunciation of war has of late fallen into disuse." As Washington's secretary of the Treasury, Hamilton argued in his "Pacificus" essays that all specific grants of power to Congress were narrow exceptions to the president's plenary "executive power." Congress "is free to perform its own duties according to its own sense of them -- though the Executive in the exercise of its constitutional powers, may establish an antecedent state of things which ought to weigh in the legislative decisions." The powers of war and peace, he argued, were "a concurrent authority," shared between executive and Congress. 

Since that initial skirmish (over Washington's 1793 Proclamation of Neutrality in the war between Britain and France), the two branches have slowly pushed the line of control back and forth. According to a comprehensive 2011 report by the Congressional Research Service, presidents have sought "declarations of war" 11 times. On the other hand, they have sought and received "authorization for the use of military force" -- in other words, Congressional permission to send the military into battle without invoking the magic words -- on at least another 11 occasions. The earliest was John Adams's request for permission to use Naval vessels to protect American shipping from French raiders. (That came well before the first "declaration of war," against Britain in 1812.) In the 1800 case of Bas v. Tingy, the Supreme Court held that this authorization created what Justice Bushrod Washington called a state of "imperfect" but "public" war, limited in scope but "authorized by the legitimate powers." 

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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