Posted on Feb 4, 2015
Can Congress Declare War without the consent of the President?
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With the recent events with ISIS many in this country have been wondering if we should declare war, go to war, intervene, or however you wish to phrase it. However, we all know the president is reluctant to engage ISIS or to put "Boots on the Ground" in Syria/Iraq. So my question is can Congress declare war, or send troops to fight, without the authority of the President (Commander-in-Chief)?
When it comes to war-fighting the Constitutions lays it out thusly:
Article I, Section 8:
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress
Article II, Section 2
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors
To me this sounds like Congress has the authority to require the Commander-in-Chief to act as such.
When it comes to war-fighting the Constitutions lays it out thusly:
Article I, Section 8:
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress
Article II, Section 2
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors
To me this sounds like Congress has the authority to require the Commander-in-Chief to act as such.
Congress
ISIS
Authority
Edited 10 y ago
Posted 10 y ago
Responses: 7
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Yes, but they have no Enforcement nor Executive Authority to exercise it. Congress has no Troops to fight it with.
Once War is Declared, the Power rests solely with the President. War cannot be Un-Declared.
Additionally, to end a war, that requires a Surrender which is essentially a Treaty, which requires the Senate ratified, President Signed document.
Therefore, even though Congress would declare war, they are essentially "investing" all of their power in the President for the duration of it. They can't even sue him (to SCOTUS) to enforce, since Declarations of War aren't signed into Law.
This is one of the reasons AUMF (Authorizations Use Military Force) are preferred. These have the force of Law, with all the Checks & Balances.
Once War is Declared, the Power rests solely with the President. War cannot be Un-Declared.
Additionally, to end a war, that requires a Surrender which is essentially a Treaty, which requires the Senate ratified, President Signed document.
Therefore, even though Congress would declare war, they are essentially "investing" all of their power in the President for the duration of it. They can't even sue him (to SCOTUS) to enforce, since Declarations of War aren't signed into Law.
This is one of the reasons AUMF (Authorizations Use Military Force) are preferred. These have the force of Law, with all the Checks & Balances.
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Sgt Aaron Kennedy, MS
Nah, just a subject that interests me, but thank you for thinking so SGT James Elphick
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1LT William Clardy
Sgt Aaron Kennedy, MS, where do you get the notion that a Congressional declaration of war hands over all authority and control to the Executive?
All the actual declarations I've seen contain minor variations on "...the President is hereby authorized and directed to employ the entire naval and military forces of the United States to carry on war against... and, to bring the conflict to a successful termination". By my reckoning, that which Congress has authorized, it can also revoke said authorization any time it is in session and decides to declare the problem "successfully terminated", with no requirement for a treaty.
All the actual declarations I've seen contain minor variations on "...the President is hereby authorized and directed to employ the entire naval and military forces of the United States to carry on war against... and, to bring the conflict to a successful termination". By my reckoning, that which Congress has authorized, it can also revoke said authorization any time it is in session and decides to declare the problem "successfully terminated", with no requirement for a treaty.
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1LT William Clardy
Sgt Aaron Kennedy, MS, I would also make a minor correction to your very clear explanation of the meaning of the Congressional powers: the organized militia extends beyond the National Guard to include State Guard forces created in accordance with 32 USC, in addition to which many states have their own (independent) statutory provisions for the creation of organized state militias.
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Agree Congress has the authority to declare war, independent of the President's thoughts / wishes.
Presumably a President who chooses not to prosecute a Congressionally declared war in a manner acceptable to the Congress is subject to impeachment and removal / replacement. That would obviously be a "sticky wicket" if I may revert to my roots.
Presumably a President who chooses not to prosecute a Congressionally declared war in a manner acceptable to the Congress is subject to impeachment and removal / replacement. That would obviously be a "sticky wicket" if I may revert to my roots.
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