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. 
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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." 

In other words, both "declarations of war" and "authorizations" have been a part of American constitutional tradition since the earliest days. If every "undeclared" conflict is a violation of the Constitution, we need retroactive impeachment of Adams, Jefferson, Monroe, Eisenhower, Johnson, Reagan, and both Bushes. 

A "declaration of war" has always been a specific policy tool -- a blunt one, and one that many presidents, and Congresses, have chosen not to use. "Authorizations," by contrast, permit the two branches to agree on limited war aims. An authorization can lapse without a formal surrender; it can permit military action short of total war. It's a tool that any government needs, and any rational constitution provides.

In addition, international law (which is very much part of the Constitution) has changed during the last 115 years. The notion of a "declaration of war" is now both obsolete and meaningless. Under both the Kellogg-Briand Pact of 1928 and the United Nations Charter (1945), war is no longer a lawful tool of national policy. With few exceptions, states may use military force only in self-defense, or with the permission of the U.N. Security Council. Insisting that Congress "declare war" is not just simple-minded, but self-defeating: It is asking the nation to solemnly declare itself to be an international outlaw. 

Of course, presidents can sometimes use force without any prior approval by Congress. Both "declarations" and "authorizations" have often come about after the president has committed troops to conflict. But in most cases, that commitment came about because -- as in the Quasi-War with France and in Jefferson's battle with Tripoli and Algiers -- foreign forces had picked a fight with U.S. troops or civilians. No one, I hope, questions that president has the power (and the duty) to defend the nation, its armed forces, and its civilians by force when a "sudden attack" is launched. 

More controversial are other occasions when presidents have used force without authorization, arguing that they were obligated to do so under valid treaties. (Treaties are, under Article VI § 2, as much a part of the "supreme law of the land" as the Constitution itself.) 

But neither precedent suggests that a president can launch a military campaign against a foreign country in the absence of any attack, treaty obligation, or sudden, peace-threatening emergency requiring an immediate response. Obama insists that he has the authority to launch a Syria strike on his own, but that seems like standard presidential bluff. In Syria, the United States will be launching war from a standing start, and Congress must be involved

If we really want to understand why, let's do something more than consult old dictionaries about the meaning of "declare war." That language appears in the midst of Article I § 8, the Constitution's epic catalogue of the powers of Congress. It isn't just tucked in there, either. Of the section's 300-plus words laying out specific powers, nearly half concern military matters. (That's true even if we don't conclude, like the brilliant separation-of-powers theorist Louis Fisher, that the power "to regulate commerce with foreign nations" was also "understood as closely related to the war power.") 

Congress doesn't just get to "declare war" -- it gets to define and punish piracy, to commission privateers, to create and maintain an army and navy, to call the militia into federal service, and to regulate and govern it even when it is under state command. It has authority over all places acquired by the federal government for "Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings." Under Article II, to be sure, the president commands; but other than that, the text tells me that the military belongs to Congress. If the president wants to use it, he pretty much has to ask permission. Congress can turn most of its power over to the president (by "declaring war"), or give him a more limited "authorization" to use it for specific ends. 

So if Congress votes not to authorize a strike on Syria, Obama has no power up his sleeve to allow it. On the other hand, if Congress does authorize the use of force in Syria, the absence of magic words like "declare" won't mean anything. Our nation will be legally committed to the use of force, and it will behoove us all to rally around.

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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, and is the author of American Epic: Reading the U.S. Constitution.

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