A question I've been pondering lately. Article I, section 8 of the Useless, I mean U.S. Constitution grants Congress the power "To declare War." But does that mean Congress has to say, "We declare war," or can they simply say, "We authorize the President to use force"?
Politically, an actual declaration of war seems a bolder step, so might be desirable as a way of limiting how often we actually go to war. Empirically, this doesn't seem to have happened, although perhaps if we insisted that nothing less than an actual declaration of war was legitimate it might.
But from a constitutional interpretation perspective, does the text demand that kind of interpretation?
Article I, section 8 also authorizes Congress to create tribunals inferior to the Supreme Court. Does that mean legislation creating a new Circuit Court of Appeal, or District Court, must being with the words, "We hereby constitute a Tribunal inferior to the Supreme Court?"
I've been telling students for years that we haven't declared war since WWII, but have been involved in many military conflicts since then anyway, implying that they're all illegitimate. And some clearly are...for example Clinton's insertion of troops into Yugoslavia without even consulting Congress, which really was nothing less than an implicit presidential declaration of war upon the Serbs (not that the action wasn't ethically justified, but that's not my point today). But in the Persian Gulf War, and in the current Iraq war, Congress authorized the use of military force against another country--e.g., they authorized acts of war. And I'm not sure why that's not constitutionally satisfactory.
Granted, Bush declared he had the authority to go to war anyway (he certainly had lots of presidential precedent), but in the end, Congress did give him authorization. And Congress has always declared war only in response to a presidential request for it, I believe.
I don't know. I have to grade 45 student papers on the President's co-optation of the war power, and now I'm not quite so sure what I think about it.
