The U.S. Constitution provides, at Art I, Section 8, the following:
Section. 8.
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States:
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
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;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
That's what Congress is empowered to do, and that's what its duties are. Let's look again at one of them:
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
Only Congress can declare war. Not the President.
War is a legally defined state of conflict between sovereign nations. In a way, war can be regarded as "duels between nations", or actually lawsuits between nations, settled by the jury of armed force. A species of trial by combat, legally defined. Not all armed spats between nations are "wars" legally, and conflicts between a recognized government and an unrecognized entity, while it may take on the "character of war" is not a war, at law. True wars end when one nations "sues for peace", showing the degree to which they're a legalistic affair. Some things, moreover, are legal in wars, and others are not.
Right now, we're pretty clearly getting ready to rocket Syria. Whether the Syrian
government deserves it or not, sending a missile strike against a
recognized government is certainly a causi belli for that government.
But does it require a Declaration of War under the U.S. Constitution?
Can Congress even find that clause of the Constitution?
It's
always been the case that the President has been regarded as having
legitimate powers to deploy the armed forces into some sorts of hostile
actions without a Declaration of War, and not every armed conflict is a
war. Supporting a legitimate government against a rebellion, for
example, has not traditionally been regarded as a war.
But taking on a sovereign nation full scale is clearly a war. Something less than that? Well, maybe not.
Without
debating the pluses or merits of the conflicts individually, it seems
to me that our action in Afghanistan would not have have been regarded
as a war, in legal terms. Afghanistan lacked a government to declare war against. Our two wars (or perhaps its really one)
against Iraq seem to me to be a true war, requiring a declaration of
war. Taking on Syria now? Well, not sure. Seems to me probably yes,
it's a war.
I raise this not because I'm a pacifist (although I
really debate the wisdom of getting tangled up in another Middle Eastern
sandbox) but because ignoring this really important duty of Congress,
by Congress, and by the Executive branch, really bothers me. It shows
Congress to be a much of spineless wimps in this area and gives the
power of life and death over thousands to a single man. Seems like a
poor idea.
Thoughts and opinions?
